§ 5.43 p.m.
§ The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. Its rather obscure terms cover a question of very wide and deep importance. That is because of the dual nature of the matrimonial home. On the one hand, it is the seat of a family and, as such, its integrity is of great social importance. On the other hand, it is a capital asset which should be capable on requirement of being dealt with commercially with speed, economy and safety. The problem facing the Law Commission in the reference to them was to reconcile those two aspects. Provided that their report is read as a whole, taken as a whole and not taken selectively, they did, in my submission to your Lordships, succeed quite brilliantly. We owe them a debt of gratitude, not only for their clarity and perspicuity but also for their conclusions.
§ There were two cases which were reported at the same time, and the facts in outline in Boland are as follows. The husband. Michael Boland, bought a house. It was not the first family house. He went to live in the house with his wife and, I think, their child. The wife made a substantial contribution towards the purchase of the house. That was a common feature of both cases. The husband in order to finance a business venture raised a loan from the bank on the security of the house. The house was in his sole name although the wife did not know that—indeed she had no reason to know that because previous houses had been in their joint names.
§ The husband failed to repay the loan on time and the bank attempted to realise on the security of the house which had been pledged to meet it. It was not disputed that, as between the husband and the wife, the wife was entitled to remain; but the bank claimed that, as between them, an innocent mortgagee, albeit one who had made no inquiries as to whether there was a family living there, the bank was entitled to turn the wife and the child out and to have vacant possession. A unanimous Court of Appeal, which was presided over by my noble and learned friend Lord Denning, rejected that claim of the bank, and that judgment was upheld, again unanimously, by an Appellate Committee of your Lordships' House.
§ The situation obviously raised difficulties for conveyancers, banks and other persons lending on the security of a matrimonial home. My noble and learned friend who sits on the Woolsack therefore referred the matter to the Law Commission. At the same time, he asked me to withdraw a Bill to which your Lordships had given a Second Reading, the Matrimonial Homes (Co-ownership) Bill, which obviously falls very much within this sphere of the law. so that the matter could be considered along with the issues that were raised in Boland.
§ The decisions turned partly on highly technical aspects of the law of conveyancing and land registration. I am not going into them because, in the first place, I know my own limitations. Secondly, if they have to be gone into, your Lordships will be looking to my noble and learned friend the Lord Chancellor; and, thirdly, your Lordships are going to be privileged to hear the maiden speech of my noble and learned friend Lord Templeman, who is an 641 acknowledeged master of this branch of the law. Although many of the issues were highly technical, running through the judgments was a strong sense of the social issues that were involved.
§ I have mentioned the co-ownership Bill. Perhaps I may give a short background to that. It starts in 1965. when my noble and learned friend Lord Gardiner in his notable act of statesmanship set up the Law Commissions. One of the very first problems that they took up was matrimonial property. That was because development of the law did not match the modern concept of a marriage as being an equal partnership between husband and wife in which each of them performs complementary functions.
§ The task was to modernise the law and attune it more to modern conditions. The Law Commissions had wide consultations and they put out a discussion paper and also commissioned a social survey. Those three steps showed an overwhelming acceptance of the desirability of co-ownership of the matrimonial home and a majority (although a narrow one) of people who actually practised it.
§ On the strength of that survey, the Law Commissions produced a number of reports setting the legal framework for the modern approach to matrimonial property law. Your Lordships debated the third report as long ago as July 1979, when it met with very general approbation. I remember that the noble Lord, Lord Mishcon, was the spokesman on that occasion from the Bench on my right. That third report had three drafted Bills annexed to it. One has subsequently been enacted and another was the co-ownership Bill which, as I have said, I withdrew after the Second Reading.
§ That Second Reading was in February 1980, and the noble Lord, Lord Boston of Faversham, was then speaking from the place where the noble Lord, Lord Mishcon, now is. He had only one reservation—a very small Committee point—on which I personally agreed with him: it was obviously a matter for discussion. Otherwise, the noble Lord was strongly enthusiastic in favour of the measure. There was also the noble Lord, Lord Middleton, who I ought to mention because he cannot be here today. He was apprehensive about the impact of the measure on historic homes. I personally saw great force in his objection and subsequently I agreed, with the approval of the Law Commission, an amendment which was acceptable to the Law Commission and which would meet his point. I told the noble Lord that I was going to mention this to your Lordships and the noble Lord very much regrets that he cannot be here.
§ Apart from that, there was virtually not a murmur of criticism of the Bill until we came to my noble and learned friend on the Woolsack. All your Lordships who spoke at that time having expressed such very strong approval, my noble and learned friend naturally felt it his duty to constitute himself, as he expressed it, devil's advocate. As always, he was forceful and eloquenti and indeed the only criticism that could be raised was that his speech had nothing whatever to do with the Bill. His objection was that there was widespread dissatisfaction among husbands who had been divorced and their second wives about the property dispositions made after the divorce; but of course the Bill dealt with rights of ownership and finance before there was any divorce, during marriage.642
§ So the case for the Bill went virtually without contradiction.
§ I have said that I withdrew the Bill; but after doing so I was advised, and accepted the advice, that the Bill was in any case beyond the capacity of a private Member. Certainly it was a considerably more weighty measure than the ones I had undertaken to promote in your Lordships' House at the request of my noble and learned friend the Lord Chancellor. This Bill ought to be—and this is one of the points I desire to submit to your Lordships—a Government Bill, partly because of its weight and importance, and partly because it emanates from the Law Commission on a reference to the Commission by the Government.
§ The Law Commission have reported, and they find that the disadvantages from Boland outweigh the advantages of promoting, or further promoting, the integrity of family life. The disadvantages are the additional risk, complication and cost of conveyancing; and they find those to be unacceptable. However, they say that the advantage in the way of maintaining the family integrity of the matrimonial home should be vindicated by enacting the Matrimonial Homes (Co-ownership) Bill. They say, repeating what their predecessors of different constitution said, that that Bill is justified on its own merits, but that it is further commended and endorsed by the other conveyancing recommendations.
§ Therefore the questions I would venture to ask are these. First, do the Government accept the Law Commission's recommendations in totality? Secondly, do the Government accept that the technical recommendations cannot be implemented in a manner consonant with social justice to wives without the scheme of co-ownership? Thirdly, will the Government themselves assume legislative responsibility over the whole field? My Lords. I beg to move for Papers.
§ 5.58 p.m.
§ Lord Mishcon
My Lords, your Lordships have heard very erudite and eloquent references to some of the problems involved in and created by the decision in Williams and Glyn 's Bank v. Boland from the noble and learned Lord, Lord Simon of Glaisdale, to whom we are so much indebted for bringing these matters to our attention. Like the noble and learned Lord, Lord Simon, I am sure that the whole House will have seen with considerable pleasure that the noble and learned Lord, Lord Templeman, is to make his maiden speech in this debate and, with your Lordships, I look forward very much to hearing him.
Having had a different view from his own view expressed as a judge of first instance by the Court of Appeal and the House of Lords in this very case, I have a sneaking suspicion that he is experiencing tonight some secret sense of amusement that if his judgment had been followed by the highest court of appeal, which he now graces with such distinction, the noble and learned Lord who sits upon the Woolsack would have been saved at least part of the severe legal headache your Lordships are asked to share with him tonight.
As the noble and learned Lord, Lord Simon of 643 Glaisdale, has indicated, that legal headache has its origin, to put it shortly, in the decision that, in regard to registered land of which Mr. Boland was the sole registered proprietor, and by virtue of Section 70(1) of the Land Registration Act, his wife's interest, through her contribution towards the purchase of the family home, was—and I quote from the Law Commission's Report—an interest subsisting in reference to the land".As she was in actual occupation at the relevant time, and as the bank in whose favour the property was charged had made no inquiries of her, her rights consisting of her property interest and the dependent right of occupation were an overriding interest, to which the charge given by Mr. Boland, her husband, to the bank was subject—no registration, no notice.
By that decision—and I am again paraphrasing the report—two general and important features of our law were held to be excluded; that is, the doctrine of notice and the system of over-reaching. As the report also states, it looks as though, for slightly different reasons and in spite of a different procedure, the result would have been just the same if the land had been unregistered. A spouse has, of course, a separate statutory right of occupation protected under the Matrimonial Homes Act 1967. While always binding on a spouse who is the legal owner, a purchaser or mortgagee, however, is bound only if the spouse's right has been registered.
Quite separately from the problems created by Boland—and, indeed, before the decision in Boland, as your Lordships have heard—the Law Commission reported in 1978 on family property. It was their third report, and in it they recommended—and, indeed, set out as an appendix to Book 1 of that report—a Bill which, broadly but with some exceptions, provides that where either husband or wife, or both, own the matrimonial home, it is to be owned equally by way of a trust for sale under which they will have a joint beneficial interest. This is called statutory co-ownership. Your Lordships have heard much about this Bill from the noble and learned mover of this short debate.
As has been said, the Boland case has caused very grave conveyancing difficulties and hardships, quite apart and distinct from questions of matrimonial relationships. To use the Law Commission's own words in paragraph 44 of their report:We maintain that, despite its advantages, the protection given by the law as it was found to be in Boland is inadequate for co-owners, detrimental to purchasers and inconsistent with the general policy of the law.".There are equitable co-owners who are not wives or husbands and who come within this judgment, and the main difficulties are those created for perfectly innocent purchasers and mortgagees, who act with complete good faith but who, without any notice being registered, can find themselves faced with rights of occupation and so on which prevent them from obtaining possession of, or selling, a dwellinghouse in a manner which would have been completely open to them but for Boland. It is a serious matter, because all this can have a deterrent effect on the grant of mortgages when mortgages are badly needed and, 644 possibly, when they are, from a social point of view, most needed.
The smaller the value of the dwellinghouse and the less the means of the borrower, the more likely it is that the mortgage will be refused if there are possible problems in the mortgagee's being able to exercise his rights in the event of default. This could so often be the position in which a young married couple find themselves. One must also not forget the equally distressing case, which can occur, however rarely, of purchasers—again, very likely a married couple—who have purchased a home and who then find themselves unable to obtain possession although their purchase has been completed.
The report, if I may say so most respectfully, made very sound recommendations for what should be fairly simple legislation; and in using that adjective I bear in mind the debate which immediately preceded this one. Balancing, as the report says, the sometimes conflicting interests of wives and other co-owners, on the one hand, and purchasers and lenders, on the other hand, the report advocates protection by means of the existing system of registration.
There should, the Law Commission say, be a registration requirement, whereby an equitable co-ownership interest, including the rights which flow from it, would be enforceable against a purchaser or lender if, but only if, the interest is registered in the appropriate manner. For the further protection of the matrimonial home, it is suggested that the rights of married co-owners should include a special consent requirement, whereby no sale or other disposition of the home can be effected without the consent of the other, or an order of the court.
The report also refers—and it is upon this aspect that the noble and learned Lord, Lord Simon of Glaisdale, has concentrated—to a scheme of equal ownership of the matrimonial home, in accordance with the Bill annexed to the Commission's third report, which I have already mentioned. While this Bill may well have attractions—as the noble and learned Lord, Lord Simon, said, I well remember speaking on that measure in this House; and I freely admit that it would be impossible to conceive of a more persuasive and persistent advocate of that Bill than the noble and learned Lord, Lord Simon—one must fairly say that it is a controversial Bill and a lengthy and complex Bill, and if linked, inevitably, to the other recommendations so that it is made to form an integral part of them, it would. I fear, either lead to no legislation at all or, at least, to much delayed legislation; and this, as I understand it, neither bona fide lenders nor the legal profession want. The legislative reforms required after Boland are much too urgent.
What I do not want to see—nor do I believe would your Lordships want to see in default of this legislative reform—are banks and building societies being forced, for their own protection, to conduct the most undignified, intrusive and even offensive inquisitions into the occupancy of a home, and the relationship between spouses and other joint occupants of a home, which will have to be the case if Parliament does not deal speedily with the implications of Boland in the still quite common case of the sole legal owner. I hope 645 there will be speedy legislation; but, with great respect to the noble and learned Lord, Lord Simon of Glaisdale, I would say: let the provisions of the Bill dealing with spouses and statutory co-ownership be looked at and debated, by all means, but not to the detriment of what, to me, is the more essential and urgent legislation at this moment.
Husbands and wives are more and more, and for several reasons, becoming joint legal owners of their matrimonial homes. Where this happens there are few, if any, difficulties. Let this be encouraged and publicised. It is certainly very frequently advised by members of my own profession.
I repeat my expression of gratitude to the noble and learned Lord, Lord Simon of Glaisdale, for making it possible for us to put our points of view on this important case. I thank him in particular for permitting me to put my own views very respectfully to your Lordships' House.
§ 6.10 p.m.
§ Lord Hooson
My Lords, I intend to make a very short contribution to this debate. I do not wish to stand between the House and the maiden speech of the noble and learned Lord, Lord Templeman, who must surely be making a maiden speech in an unprecedented situation. One is intrigued to know what his views are after years of reflection and contemplation, bearing in mind that he was the learned judge at first instance in the Boland case. My speech will be slightly longer than it would otherwise have been because of the remarks of the noble Lord, Lord Mishcon. The noble Lord seemed to me to be inviting the House to do exactly what the noble and learned Lord, Lord Simon of Glaisdale, suggested should not be done: to indulge in a process of selectivity with regard to the recommendations made by the Law Commission.
Speaking on behalf of my own party and the Social Democratic Party, it seems to me that it would be entirely unacceptable to us, and I believe unacceptable to this House, to embark upon the process which the noble Lord, Lord Mishcon, suggested. Surely it was because of the conveyancing problems which arose from the implications of the decision in Boland that it was necessary to refer the matter to the Law Commission. But the matter should not be referred to the Law Commission with a view to reversing the Boland decision. To quote the words of the noble and learned Lord, Lord Wilberforce, from the report of the Law Commission:As Lord Denning…points out, to describe the interests of spouses in a house jointly bought to be lived in as a matrimonial home as merely an interest in proceeds of sale, or rents and profits until sale, is just a little unreal".That was absolutely at the core of the decision. The noble and learned Lords knew exactly the problems that they must have been creating for conveyancers. This matter had therefore to be referred to the Law Commission.
I had not read the Law Commission's Report until last weekend. I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for causing me to read this fascinating report. What impressed me—I am speaking about a sphere of law which is outside my usual sphere—was how the Law Commission had 646 looked at the problem as a whole. They had looked at the problem as it affected partners in a marriage who had jointly contributed to the purchase of the matrimonial home. One had the matrimonial home co-ownership interest. One also had the conveyancing or property interest involved. Then it was a question of the Law Commission, in a very impressive report, balancing everything out. The noble Lord, Lord Mishcon, has, as I understand him, suggested that we should accept part of the recommendations and not bother with the conclusions. The Law Commission came to three conclusions and made four recommendations. The noble Lord is virtually suggesting that one of the recommendations should be modified or limited, at least in its implications.
§ Lord Mishcon
My Lords, I am sure the noble Lord will not mind if I intervene to say that my point was that I thought it to be necessary to do something because of the conveyancing and other difficulties arising out of Boland. I was not expressing a contrary view with regard to the recommendation. I was saying that it was better to try to get a law through than to know that you could not get it.
§ Lord Hooson
My Lords, if I follow the noble Lord correctly, I think he would find greater difficulty in getting that law through than in putting through the package deal which the Law Commission has recommended. I do not think we should go beyond the package deal. We on these Benches would certainly give wholehearted support to the package deal, but not to a selective deal of the kind indicated by the noble Lord.
§ 6.15 p.m.
§ Lord Templeman
My Lords, this debate involves consideration of two problems: the problem of protecting wives and the problem of protecting lenders. I venture to participate with some trepidation, notwithstanding the welcoming noises which have been made by those who have already spoken. For 35 years I have been substantially concerned with the problems of wives and lenders, although fortunately the problems have been of a professional rather than a personal character.
Until fairly recently, no problem arose about protecting wives, because wives had no rights. The ecclesiastical principle of the unity of husband and wife was perverted so that the husband was everything and the wife was nothing. The wife could not acquire property; she could not contract; her only consolation was that if she committed a tort her husband would have the pleasure of paying the damages. It was only slowly that that position was altered: first, I am glad to say, by the intervention of equity lawyers and the invention of such strange instruments as the restraints on anticipation. But that was only in favour of rich wives. As late as 1856 a working wife was not entitled to keep what she earned. One of the first worthy pressure groups on behalf of wives lamented the fact that a wife could work from morning until night, only to see the product of her labours wrested from her and wasted in a gin palace by her husband.
It was not until 1882 that the Married Women's Property Act gave a wife separate property and 647 separate rights—although in theory rather than in practice. It may merely have changed her status from that of a slave to that of an unpaid housekeeper. Women's rights were not really asserted in the property sphere until after the Second World War. They were then raised for three reasons: first, the very proper assertion of independence and campaigns for non-discrimination on behalf of wives and women in general; secondly, the increase in divorce which brought into being large questions relating to the devolution and distribution of property; and, thirdly, the increase in value and the increase in importance of a matrimonial home, which may now be worth many thousands of pounds but yet cannot be divided into two.
The first step to cope with those problems is attributable to the noble and learned Lord, Lord Denning, who, by his usual skilful use of precedent, established the deserted wives' equity. That had certain difficulties upon which I need not dwell, but it spurred Parliament into passing the Matrimonial Homes Act 1967 whereby every spouse—the Act covers a husband as well as a wife—has a right of occupation of the matrimonial home, a right which can be disturbed only by an order of the court. The only difficulty about the Act is that for the rights to be enforceable against a purchaser or a lender, they must be registered under the Land Charges Act and the Land Registration Act. In practical terms, although the Law Commission say that some 70,000 women have registered under that Act it is not very practical to foresee a wife, the minute she has been carried over the doorstep of the house, going round to the Land Registry to register her rights in case she should become deserted and should wish to exercise those rights. That is a theoretical rather than a practical protection.
The next legislative step is now embodied in the Matrimonial Causes Act 1973 which enables the court to award to either party periodical payments or lump sums and to make property adjustment orders whereby a matrimonial home can be—some would s, ay brutally—taken away from a husband and given to a wife, or vice versa. My noble and learned friend the Lord Chancellor has been subjected to what he has called some expressions of dissatisfaction about that Act. It must be remembered that it only comes into play at the end of a chain, when the husband and wife fail to make sensible arrangements; when ministers and friends, conciliation officers and lawyers all have failed and someone has to make a decision.
It is only in those circumstances that the matter comes before the court; and it is inevitable in those circumstances that at the end of every case, the husband thinks that the wife has been awarded too much and the wife is convinced that she has been awarded too little. Nor can the matter be covered by mathematical divisions. Where there are different circumstances—a wife who is capable of earning an income of her own on the one hand, or a wife who has to bring up a disabled child on the other hand—it is not possible to lay down any strict rules as to how property ought to be divided under that Act. It is the Matrimonial Causes Act 1973 which puts husbands and wives on an equal footing, to be treated according 648 to their needs and according to their assets when divorce takes place.
There remains, as there always remains, a serious problem: what is to be done about a husband who is tempted or has good reason to squander some of the matrimonial property before any question of divorce comes up, as in the present case with which we are concerned? What is to happen when a husband tiptoes round to the bank and borrows £10,000 on property which is in his sole name but in which his wife has a high moral interest—namely, the matrimonial home? The decision of your Lordships' House in the case of Williams and Glyn's Bank v. Boland is a partial and welcome solution to that problem—but only in part. That decision applies only where a wife can show that she has contributed to the purchase price of the house; that she has contributed some money to the husband, and that, although the property stands in his name, she has provided some of the capital with which it was bought. The decision in Boland does not protect the wife who has not actually contributed pounds and pence but has. in common parlance, contributed "the best years of her life". She has no protection under Boland if the husband then goes and mortgages the matrimonial home which she leaves.
The other problem that arises from Boland is the problem of lenders. It arises in this way. Until the Boland case, in the interests of borrowers and lenders—and in the interests of flexibility, cheapness and efficiency—statutory efforts were made to cut down the amount of mumbo-jumbo which is necessary when a house is mortgaged or sold. The idea was that if a man owned a house or any other piece of real estate he could go to his bank manager and say, "Here is a valuation of my house which shows that it is worth £40,000. I need £10,000 for my business". If the bank manager asks, "How do I know that you own the house, and how do I know that you have not mortgaged it already, and how do I know that there are not lots of other people who have rights in connection with the house?" the man would simply and triumphantly produce a Land Registry certificate. He would say, "This has the red seal of the Land Registry upon it. It is of today's date. You will see that I am the sole owner and that nobody else has any rights". That being done, the bank manager could put his hand in his till and produce the £10.000 in the knowledge that he will get a good title to the mortgage of the house as security and that no one else could intervene.
As a result of the Boland case, the bank manager can no longer say that. As a result of the Boland case, although an interest in the house has not been registered, the interest of someone in the house who is in actual occupation is effective, and it is binding on the bank manager. The problem is one which applies not only to wives but to everyone in occupation. In theory, the bank manager must go along to the house on the day when the mortgage is to be registered, knock on the door and find out who is there. He must ask of each and every occupant, "Have you any claim to or interest in the house?" There may be a boy friend, who has contributed £ 1,000 to the purchase of the house, or there may be a father-in-law who has contributed £5,000 to the purchase of the house. There could be any number of persons who may be able to say, "We have an interest in the house. We 649 have not registered that interest but we are in actual occupation and therefore you have notice". Therefore, the bank manager cannot lend until those inquiries have been made.
The Law Commission has come up with a solution which extends the protection of wives and extends the protection of lenders. The protection of wives is extended because, as regards all wives, and all husbands for that matter, whether or not they have contributed in cash to the house, the matrimonial home is to be held, under the Bill which they recommend, in joint ownership for the husband and wife in equal shares. Upon divorce the court, under the Matrimonial Causes Act, may make an alteration to those proportions if it were proper to give the wife more or less—but to begin with, the marriage starts off with the matrimonial home being owned jointly and equally by husband and wife. I venture to suggest to your Lordships that that is a normal and sensible precaution, which most people take voluntarily. This Bill, if it is effected, will only bring everyone into that ken so that husband and wife will share the house equally between them.
As regards the protection of the lenders, the Law Commission has recommended that no right shall be assertable against a bank or lender unless it is registered. Although we have been invited to take the report, the whole report and nothing but the report, I venture to wonder whether its recommendations in that respect are right so far as wives are concerned. I have already indicated, under the Matrimonial Homes Act, that it is asking a lot of a wife to go and register what appears to be a hostile notice in the Land Registry against her loving husband. Therefore, so far as wives are concerned, I see no reason why the Boland decision which protects her should not stand; so that if a wife has an interest in the matrimonial home, whether she has registered it or not, the husband should not be able to mortgage or sell it without her consent. That involves the bank manager in making only two inquiries. First he has to ask, "Are you married?" Secondly, if the answer to that question is, "Yes", he has to say, "I cannot lend you any money unless your wife signs the mortgage deed and agrees". I see no reason why a husband should lament that. It is something he ought to do anyway. There is the faint possibility that some husbands will be so fraudulent that they will pretend they are bachelors, or are living on their own when they are not, but that is not really a practicable difficulty; it is extremely hard to disguise the fact that one is living with someone in a matrimonial home. Most of these matters will be dealt with through solicitors, who will make inquiries of their own clients.
It will be limited to the wife. She alone will have an interest which is enforceable against a bank whether she registers it or not. As regards all other persons—boy friends, girl friends, business associates, or fathers-in-law—who produce substantial sums of money as a contribution to the purchase of the house, why should they not register? They ought to know that, if one hands over large sums of money towards the purchase of a property, somewhere or other there should be a deed or registration which enshrines their rights. All this does is to cast on them the sensible onus of saying. "If I am to put up £5,000 towards my son-in-law's 650 house. I must first go to a solicitor to have him draw up a deed to say that I have done this". Once he goes to the solicitor, the solicitor will register.
I commend the report of the Law Commission to your Lordships as being an improvement to the status of the position and protection of wives and of husbands where material; and as being a report which eases the burden of the difficulties of lenders. No one has great sympathy for lenders or banks but the point is that at the end of the day it is the borrower who pays, unless there is some speedy and efficient method of conveyancing. This is not a question of letting the banks bear the burden of husbands who mortgage their houses; it is a question of getting a speedy and efficient system of conveyancing. Subject only to this, I, for one, would tentatively suggest to your Lordships that we ought to give the wife the fullest possible protection and not cast on her the possibility of losing her house because she has not been brave enough or thoughtful enough to go along and register her interest in the Land Registry.
§ 6.30 p.m.
§ Lord Scarman
My Lords, I know the House would wish me at once to offer the most warm and sincere congratulations to my noble and learned friend Lord Templeman, on his elegant, lucid and persuasive maiden speech. I have known my noble and learned friend for many years, and it came as no surprise to me to hear a speech delivered in such an incisive and penetrating style and with that lovely salting of wit which I am sure will mark the contributions which all of us hope he will make to the deliberations of your Lordships' House in the future.
I of course suspected that my noble and learned friend would, with his knowledge of the subject, make it unnecessary for me to deal with what I would describe as the somewhat disturbing speech of the noble Lord, Lord Mishcon. The noble Lord was a little selective in his choice of quotations from the report of the Law Commission. True enough, in paragraph 44 the Law Commission said that the protection given by the law to the wife as found in Boland is inadequate. But he was able to quote that by beginning in the middle of the sentence. In the same sentence the Law Commission had said:We maintain that, despite its advantages, the protection given by…Boland …et cetera.
The advantage of the Boland decision, as my noble and learned friend has pointed out, was that it achieved in a difficult field a measure of social justice and protection for the wife in her occupation of and property interest in the matrimonial home. This was an important achievement. Unfortunately, it did it at the cost of causing risk, expense, and perhaps in some circumstances a measure of embarrassment, to lenders and purchasers, and it was because of the need to achieve a balance between justice to the wife and justice to the purchaser and lender that the noble and learned Lord the Lord Chancellor referred the Boland question to the Law Commission.
My Lords, I agree with the noble Lord, Lord Hooson, that this report of the Law Commission is a 651 splendid contribution towards the understanding of the law and the way in which the law can be reformed. There are, of course, criticisms which one can make here and there of certain passages in the report. Your Lordships may think there is some justice in what my noble and learned friend Lord Templeman said about the wife faced with the need to register. She will see this as a hostile act, unless of course it becomes more common than I regret to say it is for people on marriage, or immediately after marriage, to consult lawyers.
My Lords, there is a principle here which I have had the pleasure and satisfaction of hearing enunciated frequently in this House by the noble and learned Lord the Lord Chancellor. When Parliament is faced with a Law Commission report there is a strong presumption that that report is soundly reasoned and that its recommendations will be rejected only after very full consideration, if at all. I would say to this House—it is important that I should say it after the contribution to this debate of the noble Lord, Lord Mischcon—that the recommendations contained in the Law Commis-ions's report on this particular reference are to be taken, so the Law Commission advises, as a coherent whole. They were prepared to recommend the measures for the protection of the lender and the purchaser—namely, registration of the wife's interest and the consent requirement, that is to say, giving her the right to intervene to stop a transaction going through—only upon the basis that they should be implemented together with their previously recommended Matrimonial Homes (Co-ownership) Bill. They did that because they recognised that the two measures which they proposed for the protection of the lender and the purchaser to some degree diminished the protection that the judges had been able to give to the wife in the Boland litigation.
So. quoting a word from the noble Lord, Lord Hooson, it was a highly intelligent package deal. The Law Commission were not recommending these protections for the bank, the lender or the purchaser unless they were accompanied by a balancing advantage, which of course Boland could not give, for the wife. Therefore if, as I sincerely hope, consideration will be given to implementing the recommendations of the Law Commission on the Boland reference, let it not be forgotten that the Law Commission's recommendation is "Yes, this protection for the lender and the purchaser, provided you also give to the wife the protection of the Matrimonial Homes (Co-ownership) Bill."
Of course, there has been some controversy about the Matrimonial Homes (Co-ownership) Bill. I am certainly not going to enter into it tonight. I am saying to the House tonight that at the moment this is a Bill which has been researched and thought out by the Law Commission. It has been looked at both before and after the Boland decision, and it is part and parcel of their recommendations for the protection of wives and lenders after Boland. But I seem to remember that in debates in this House on the co-ownership Bill the view was put forward, I think by the noble and learned Lord the Lord Chancellor among others, that there is really no need for investing the wife with a statutory co-ownership in the matrimonial home.
652 The reason why that is put forward is that it is becoming, as I am glad to think it is becoming, more and more prevalent among young married couples to put the home, when they acquire it. in their joint names. That is first-class, and it should be encouraged. Indeed, I think we should encourage young married people to go round the corner to the solicitor, or, if we could establish one, the legal clinic, to talk about the legal problems of marriage, just as they go to the medical clinic to discuss the medical problems associated with what is euphemistically called family planning. Both the legal and the medical clinics have a part to play. But they do not do that, or not all of them, or not enough of them.
When one is looking after a wife in this sort of context one has to look after the unwary woman; the woman who is at a period in her life when such vision as she may have of legal problems is entirely clouded, perhaps mercifully, by passion and love. This is the woman, at perhaps her most weak moment in the whole of her life, who has to be protected. It is surely worthwhile accepting a certain measure of difficulty—there may be some difficulties in the Matrimonial Homes (Co-ownership) Bill—in order to achieve that protection, bearing in mind that, on the Law Commission's recommendation, substantial protection is to be made available to third parties dealing with the husband over the matrimonial home.
I hope that the questions put by my noble and learned friend Lord Simon of Glaisdale at the end of his eloquent introduction to this debate will be most seriously considered by the Goverment.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down, will he permit me to intervene? I have the whole of that passage noted very clearly for quotation. If I omitted the words to which he referred. I know that he will accept it from me that it was completely by mistake. But I think if he reads the Official Report tomorrow he may find, most unusually, that it was he who made the mistake, not I, and that the words are included in my quotation.
§ Lord Scarman
I am absolutely delighted to hear that and I certainly hope that that is the position. If the noble Lord spoke the words and I failed to hear them, that is a matter for apology. It is perhaps also an indication that as one gets older, one's hearing is not quite so good, particularly when the speaker is looking towards the Woolsack and not towards the Cross Benches.
There is one further point which arises from that. It is the point regarding the coherent home in paragraph 116 of the Law Reform Report, which is so important.
§ 6.41 p.m.
§ Lord McGregor of Durris
My Lords, your Lordships' House is indebted to the noble and learned Lord, Lord Simon of Glaisdale, for this opportunity once again to debate family property in the context of the Law Commission's report on the implications of the case of Williams and Glyn 's Bank v. Boland and for his erudite and lucid exposition of a complex subject. A layman would indeed be brash and foolhardy to venture upon the legal ground occupied 653 by the noble and learned Lords who have already spoken and who are yet to speak. This is more especially the case after your Lordships have enjoyed the powerful, masterly and witty maiden speech of the noble and learned Lord, Lord Templeman. But a lay contribution ought to me be made to this debate, although I do not relish the loneliness of the task.
The law regulating property relationships between spouses and between them and others with whom they may deal, and with whom they ought to deal honourably, is not an end in itself. It is an instrument to secure and safeguard the values which society upholds in the institution of marriage and the family. One such value is equality between husband and wife. What the lay public, men and women alike, think about that is very well known, and known with certainty, because in 1971 the Law Commission commissioned a national random sample survey, to which the noble and learned Lord, Lord Simon of Glaisdale, referred, among married couples in England and Wales in order to discover their opinions about matrimonial property and the patterns of ownership of such property. Stripped of all statistical detail, the survey showed that most married couples regard equality as the proper norm of the law regulating their property relationships.
This survey was the first occasion when fairly large scale social research was directly designed by a law reform body in England for the purposes of assisting a reform of the law. Unhappily, it has also been the last so far. Nevertheless, it remains to the great credit of the Law Commission that it was the first to use properly designed social research to discover the views and wishes of the citizens whose family lives would fall to be regulated by any new law on family property.
It is therefore essential to distinguish between matters of legal technique and the purposes which the law seeks to uphold.The opinion of members of the public"—said the Law Commission—is of great importance".It summed up what women were saying, with considerable male support, in this statement:We are no longer content with a system whereby a wife's rights in family assets depend on the whim of her husband or on the discretion of a judge. We demand definite property rights, not possible discretionary benefits".In accordance with the brilliant innovation of the noble and learned Lord, Lord Scarman, when he was chairman of the Law Commission, the working paper on family property law containing, inter alia, a proposal for the introduction of a fixed principle of equal co-ownership of the matrimonial home, from which I have just quoted, was put out for the widest possible circulation and comment. In its 1973 report, the Law Commission referred to an exceptionally wide consultation, to a very great response, and to widespread interest from members of the public, many of whom sent us their views on the general issues. The Commission concluded:The great interest shown in the working party reflects the importance attached to family property by lawyers and laymen alike. Any change in the property rights of husband and wife would affect many married couples and it is appropriate that so many should have taken the opportunity to express their views".654 Following the introduction in 1969 of irretrievable breakdown of marriage as a ground for divorce there was a general debate on the reform of financial provision and of family property. Many lay people thought that such reform must follow the new divorce law, especially upon the capacity of a spouse to divorce a wife or husband against their will. At that time, in its working paper, the Law Commission spoke realistically of property rights and support rights as in fact complementary, and it pointed tothe close relationship between support rights and property rights".Well, support rights are again under debate, and the legislation of the early 1970s is a candidate for amendment. But we still seem to be stuck in a groove where family property law—I again quote the Law Commission—is hardly more than a label given to the hesitant moves by Parliament during the last 100 years to eliminate the grosser injustices inflicted by the common law upon women in property matters".The public wants change. This has been demonstrated over and over again during the last dozen or so years. But public expectations go on being falsified. Dicey observed in his account of the Married Women's Property Act 1882 that:Changes in the law which affect family life always offend the natural conservation of ordinary citizens".It seems, on recent experience, that they have offended also the natural conservatism of Labour and Conservative Governments since the early 1970s.
What further evidence is required to support the desirability of legislation of the type advocated in the report of the Law Commission which we have been discussing? Most commentators agree that the law is unjust and uncertain and the Law Commission in its report on the implications of Williams and Glyn's Bank v. Boland again urges the introduction of a scheme of equal co-ownership of the matrimonial home.
When the noble and learned Lord, Lord Simon of Glaisdale, gave your Lordships the opportunity to debate this matter in 1979, the noble Lord, Lord Mishcon, said that he regarded the Law Commission's proposals as unduly complicated and he said that he would have preferred to have proceeded by a different legal technique. Nevertheless, he concluded at that time that, in order to secure justice, it is better to adopt a scheme quickly, even though it is complex.
There has not yet been anything quick in this business. The noble Lord, Lord Mishcon, said today that co-ownership is a controversial measure. But who are the controversialists and what is the controversy about? They assuredly are not married couples and they are not the people who have a very clear view of the moral values that they wish to sustain in their marriages. Doubtless there may be controversy about legal techniques, but the public overwhelmingly supports the Law Commission's objective and it would be hard to think of any other legal reform which has been discussed in recent years which has been so widely argued, so widely canvassed and so widely approved.
It is for lawyers to devise and to agree upon the appropriate legal technique which will safeguard the proper interests of third parties and at the same time enable wives and husbands to live under a régime of 655 family property law which embodies and sustains the moral values which lie at the heart of their family lives.
§ 6.54 p.m.
§ Lord Gardiner
My Lords, I rise to deal with two matters, and I shall be very brief. First, I am very glad to see the noble and learned Lord, Lord Templeman, and I should like to congratulate him upon his maiden speech. Noble Lords do not need me to tell them what advantage it will be to have the advice of the noble and learned Lord, Lord Templeman, in the future, because they have heard his maiden speech and appreciate that already. I hope very much that he will give us his advice whenever he is free from his judicial duties and is able to do so.
Secondly, I want shortly to support the plea which has been made by the noble and learned Lord, Lord Simon of Glaisdale. When it became obvious after the Boland case that there would have to be certain changes in this field of law, it was the noble and learned Lord the Lord Chancellor who asked for the advice of the Law Commission on what course ought to be taken. It is plain from their report that they have gone into this matter very thoroughly. They have consulted every kind of financial organisation—clearing banks, bankers, finance houses and commissions—as well as, of course, the British Legal Association, the Chancery Bar Association, the Family Law Bar Association, the Law Reform Commission of Ireland, the Law Society, the Senate of the Inns of Court and so forth. They have exhaustively discussed every possible alternative and the advantages and the disadvantages of each alternative. These they have set out in their report. What it comes to is that we ought to enact the Matrimonial Homes (Co-ownership) Bill with a number of important amendments which they specified.
They concluded 118 paragraphs of their report by saying, in effect, that they did not think it would be useful to draft the actual Bill until they had heard further from the noble and learned Lord the Lord Chancellor, and that one can understand. Therefore, I would very much hope that the Government will take the attitude expressed by the noble and learned Lord, Lord Scarman, that when there is a unanimous report of the Law Commission of this kind, when it is obvious that they have been through a very full stage of consultation with everybody with views on the subject and have come to a unanimous conclusion, prima facie that report should be accepted. I hope very much that the noble and learned Lord will say to them, "Now go ahead and draft the Bill". Of course I appreciate, as I am sure we all would, that whatever Bill is drafted it will always be open to any Member of either House to move an amendment to if, that, of course, is inevitable. But I would submit that prima facie the proper course for a Government to adopt is for to them take the Law Commission's report and to say to the Law Commission: "Yes, go ahead and draft the Bill".
§ 6.57 p.m.
§ Lord Denning
My Lords, I should like to join with the rest of your Lordships in congratulating my noble and learned friend Lord Templeman on his maiden speech. It contained a view of our law between 656 husband and wife which was wholly admirable, concise and informative. So far as I am concerned. I think that for the last 30 years I have been involved in practically every case in the courts concerning a matrimonial home. If I had anything to do with the question of which court tried a case I would try to see that it came before a court over which I was sitting. Perhaps I should not have done so. but anyway I have been involved in most of those cases.
There has been a remarkable development for the protection of the wife in regard to the matrimonial home. Previously, as my noble and learned friend has said, the wife had no rights. If the house was in her husband's name, he could turn her out just as if she was a licensee with no rights whatever. We remedied that by the deserted wife's equity. If she was deserted by her husband and he sought to turn her out. we said that no, he should not do so: even when the matrimo-, nial home was transferred by the husband to a bank, we would not let the bank turn her out. But the House of Lords said that the bank could do so. and it needed Lady Summerskill with the Matrimonial Homes Act 1967 to put that right. So now. by law and by statute, the deserted wife is protected in the matrimonial home. That is the first great step.
The next great step which has not been widely recognised is that, although the house was in the husband's name, the wife, by law and equity, was given a share in the house, at first, by her money contributions (if her earnings helped to pay the mortgage instalments); next, by her looking after the children; and, next, by her generally looking after the house. By a series of decisions, the wife has been given a share in the matrimonial home. That is what happened in Boland and is why there was trouble.
In Boland's case, the husband was running a company and wanted to borrow money for the company. He did, and the bank—which always wants not the company's credit but the husband's credit—said. "Will you guarantee it?" The husband said "Yes, I'll guarantee it personally." The bank then said. "What security do you have?" He has his house in his own name; he produces the deeds, and the bank lends the husband the money. Then the company goes bankrupt, it goes broke and goes into liquidation. The bank then comes down on the husband, who cannot pay. The bank asks. "Where is the house?" The house is in the husband's name. The bank then say that they will turn out the wife. That is what the bank claimed to do in Boland's case, the wife having known nothing whatever of what was going on.
It was in those circumstances in the Court of Appeal that I ventured to say:Anyone who lends money on security of a matrimonial home nowadays ought to realise that the wife may have a share in it. He ought to make sure that the wife agrees to it or go to the house and make inquiries of her. It seems to me utterly wrong that a lender should turn a blind eye to the wife's interest, or to the possibility of it—and afterwards seek to turn her and the family out—on the plea that they did not know she was in actual occupation. If a bank is to do its duty in the society in which we live, it should recognise the integrity of the matrimonial home. It should not be destroyed by disregarding the wife's interest in it—simply to ensure that the husband's debt is paid in full—with the high interest rates now prevailing. We should not give monied might priority over social justice. We should protect the wife who has a share in the home just as in the old days we protected a deserted wife.657 That is the principle which was affirmed by the House of Lords. It is the principle which ensures social justice in our time to the wife who is living in the matrimonial home and who knew nothing whatever of what the husband was doing with it. the bank not having made the slightest inquiry or having gone to the house to make any inquiries about the wife. They sought to get her out without a word to her. That is Boland's case, and I am most pleased today that my noble and learned friend Lord Templeman would not wish to shake the validity of Boland's case in regard to wives.
What, if it were taken alone, would this new Bill which is recommended by the Law Commission do? It would say, "Such a wife is not protected unless she has registered a charge." What wife who is living in the matrimonial home knows anything about registering a charge? If she is living there happily with her husband, does she go off to a solicitor and tell him to register a charge, she not knowing that her husband is borrowing money? We ridiculed that in the deserted wife's case. and I would ridicule it now. If that is not right, I would recommend every bride, as soon as she is married, to go to a solicitor and say. "Register my charge". I have said that that is what ought to be done in the case of deserted wives. But that is not really a practical proposition.
Therefore, I would be entirely against this recommendation if it stood alone. But it does not stand alone. That is the important point which my noble and learned friends Lord Simon of Glaisdale and Lord Templeman have made. It is really a necessary part of the initial proposals for statutory co-ownership—the very important proposals which were made in 1978 by the Law Commission. I would agree with my noble and learned friend Lord Gardiner that these most important proposals being made by the Law Commission should receive the most careful and serious consideration.
I am sorry to be a little hesitant, but, as I looked at that third report which, mark you, will insist that every married woman is, by statute, a co-owner with equal property with her husband——
§ Lord Simon of Glaisdale
My Lords, If my noble and learned friend will allow me to interrupt, it was only a prima facie régime; anybody could contract out. There was no force about it at all.
§ Lord Denning
My Lords, maybe, but at the moment I do not want to go into all the details of that proposal. To all events and purposes, the proposal was that there should be statutory co-ownership of husband and wife in equal shares, unless they had contracted out. Is that to happen within a week or a fortnight of entering the matrimonial home? It may have been the husband's house before. He marries a wife and brings her into it; is she automatically to have equal co-ownership? I only mention that one instance for this reason. In the third report the Law Commission recognised how complicated and difficult this whole subject was. They said:It cannot be doubted that the provisions which we propose for co-ownership are complicated and difficult, but we do feel the need to take account of the many different situations which may exist and to deal with them fairly, and it is this need which largely accounts for the intricacy of the statutory provisions".658 It is a complicated proposal, with intricate provisions, and I would wholly support my noble and learned friend Lord Simon of Glaisdale, in saying that it ought to be a Government Bill. They ought to take it up and press it through, if that be the right solution. It ought to be discussed in both Houses, because it is a most important subject. However, that is the right course. Then, in such a discussion, the proposal which is now raised in regard to Boland could be co-ordinated with it and made one comprehensive statute, which would be the most important in our time in regard to the matrimonial home.
Therefore, I hope that this latest Law Commission report will be considered, with the other, with a view to implementation by a comprehensive statute dealing with everything. I would entirely agree with my noble and learned friend Lord Templeman: let the wife be protected even though she has not registered. However, as to all these other possible co-owners who may have a share of one kind or another, they ought to register. The wife ought to be regarded as being in a special position. I would suggest that everything be dealt with in a comprehensive Bill to be introduced by the Government.
§ 7.9 p.m.
§ The Lord Chancellor
My Lords, in some ways this has been a remarkable day. I think that we have heard no fewer than six speeches from noble and learned Lords on the Cross-Benches and, if you count the two ex-Lord Chancellors, eight from Law Lords. In opening may I say something which I forgot to say in our earlier debate. I saw the noble and learned Lord, Lord Gardiner, sitting patiently in his place during the first debate. He must, I think, have been very gratified at the repeated praise which was lavished upon his own achievement during his chancellorship of instituting the Law Commission, for which at the time I thought he had rather negative praise, though, if I may say so—and I was then in another place—I tried to redress the balance a little.
My next task is, obviously—and my first task, in a sense, in answer to this debate—to welcome the noble and learned Lord, Lord Templeman. and congratulate him on his maiden speech. There is. as I think the noble Lord, Lord Mishcon, pointed out, something droll about the fact that the judge of first instance should be making his maiden speech and the Master of the Rolls who reversed him should be saying, "How right I was". I am not sure how desirable it is, I must say to the noble and learned Lord, Lord Denning, for those who have pronounced in a judicial capacity to say "How right I was" in a legislative capacity. I think that that has dangers which are perhaps more apparent to me than they always are to him. At any rate, it was a joy to hear both of them, and in particular the maiden speaker, the noble and learned Lord, Lord Templeman, who has illustrated once more, as have the other Law Lords who have taken part in these two short debates, the great value to this House as a legislative body of having a direct component from the judiciary. A great deal of gain is to be had from it. We have not only enjoyed them, but we and other people will have gained great knowledge and wisdom from their collective and separate opinions.
659 This debate on paper is a debate about Williams and Glyn's Bank v. Boland, which was a case about the registration of property rights. There was once a Lord Chancellor called Lord Northington who is credited with the saying. "If I had known when I was a young man that these legs would one day support a Lord Chancellor, I would have taken greater care of them". I have often reflected in recent years about the wisdom of this aphorism. I would translate it by saying that if I had known when I was a young man that one day I would have to answer as Lord Chancellor on the subject of land registration, I would have taken more trouble with my Bar exams, because I do not claim that this topic is necessarily my long suit in the matter of law.
I am sure that I was right, having regard to the criticism which the decision in Boland gave rise to—despite the solid conviction, which is not confined to this case, of the noble and learned Lord, Lord Denning, that he embodies the law—in referring the difficulties to the Law Commission. I should like to express my thanks to the Law Commission and their distinguished members on having given us such an interesting report. At this stage I must challenge something which my noble and learned friend Lord Simon of Glaisdale said at the outset. He twitted me. during his sponsorship of the Second Reading of his co-ownership Bill some two Sessions ago, for having said something which was wholly divorced from the subject matter of the Bill. I plead not guilty to that charge. I plead not guilty to it on two separate grounds. The first is highly relevant to the third of the questions which he posed to me this evening.
The noble Lord, Lord McGregor of Durris, talked about social justice and what the people want. He seemed to think, as did the noble and learned Lord, Lord Denning, that what the people want is the co-ownership Bill. I must tell them both absolutely flatly that they could not sit for a week in the Lord Chancellor's office and believe that. As I said when this Bill was debated for the first time two Sessions ago, the great and decisive change in the mood of the public about matters with which my office is concerned is the extreme dissatisfaction and concern with the laws about matters ancillary to divorce.
It is in fact a source of constant communications from Members of Parliament and from their constituencies which come literally in shoals to my office. It was for that reason that one of the first things I did in my present term of office was to refer to the Law Commission the question of the partition of matrimonial property after divorce. That resulted in Law Commission Report No. 112. which I believe is far more important as a matter of priority than anything we have been discussing this afternoon, and that has not been put into law.
I have said this to your Lordships before but I say it now again: one very wise Lord Chancellor once said that law reform is either by consent or not at all. Another one said that it takes three successive Lord Chancellors to push through any important law reform. I am quite certain that I was correct when I pushed hard for the recommendations of Law Commission Report No. 112 to be put into law, and I 660 got Government approval for the policy. Unfortunately, in the way things are, I failed to get a slot in the programme. But if I had had to choose to put Law Com. 115, this one, into operation before 112, I know what my answer would have been. I know that the priority about these unhappy, broken marriages, and these unhappy children—the result for them—is infinitely more important than that, and I was bitterly disappointed when I failed to get a slot.
Happily there is in another place at the moment a Private Member prepared to take on Law Comm. 112, and happily I was able to get parliamentary draftsmen to draft a Bill which will carry its provisions into effect. But there is where the public want social justice; that is where they are not getting it. That is where the shoe is pinching, and it is not, with great respect, where the noble Lord, Lord McGregor of Durris. is putting it. I have not, I think, had one communication from a member of the public pressing for this, but I must have had literally hundreds of communications on Law Com. 112. There, therefore, is the first ground on which I challenge the charge brought against me by my noble and learned friend Lord Simon of Glaisdale.
I would also say—and I say this again to both the noble and learned Lord, Lord Denning, and to the noble Lord, Lord McGregor of Durris—that litigation between husband and wife upon the ownership of property during the course of a marriage in existence and happy is virtually non-existent nowadays. It used to be virtually non-existent and it is now. The occasions when the enforcement of these rights will arise would be either on the termination of the marriage through divorce or separation, or on the death of one of the parties. When we hear this eloquent talk about, "We wives must have rights which can be enforced in the courts", or, "We men must have them", the reality is that it is the potential successors on intestacy or on a will, or alternatively the parties to the marriage after they have broken up. who will be seeking to enforce those rights. It does not therefore appear to me that these provisions, against which I do not say anything in principle, are necessarily the most important priority we have to consider.
But I would say—and I think this has a good deal of relevance to the subject—that matrimonial co-ownership is coming and has come to a quite extraordinary degree. I think I am right in saying that at the time when the original Law Commission report was put forward about one-half of those couples who entered the matrimonial state registered their houses or homes in joint names. The proportion now, I am told, is 75 per cent. The question which one really must ask oneself in the light of that fact is how far it is prudent or socially desirable to legislate for the remaining one-quarter, not knowing (because one does not know) whether the original owner of the house was the wife or the husband—everyone assumes it was the husband, but it does not follow—or who put up the money for it or whether the parties have deliberately arrived at other arrangements which suit their particular situation rather better. It is not simply the Lord Middleton case, if I may call it that, although that was. I thought, and my noble and learned friend agreed, a valid case.
Perhaps I might put it this way. Suppose I got married again. I was for 34 years the male partner in 661 a happy marriage which resulted in five children. Would it necessarily follow that my new wife would take half of the principal asset I still possess? Would not the children have something to say about it? Of course, you can contract out of it, just as the wife can register her right of possession. How far is it a good thing that you should seek to legislate for people in relation to one of the most intimate matters of their lives—the distribution of marital property—when the marriage is still in force and when the only time when it is ever likely to be litigated is when it has broken down by death or dissolution? I do not think the matter is as obvious as some speakers have treated it, and I thought that the noble Lord, Lord Mishcon, got a rather unduly rough ride from some of my noble and learned friends. I think the matter is not clear.
It must be clear from what I have said that I do not have a slot in the Government programme this Session for law reform. The one I fought for and lost was Law Com. 112, and that I would still put first; and it follows that I do not have a slot for Law Com. 115. But if I were persuaded that the co-ownership Bill, as modified by the second report, was intrinsically something which was as urgent as some speakers have made it, I would of course combine it with the Boland provisions exactly as the Law Commission has proposed. But so long as there is a question mark—and the speech of the noble Lord, Lord Mishcon, at any rate establishes that there is a question mark—over the desirablility of the co-ownership Bill, even in its amended form, then I cannot accept as a principle that it must be married to the Boland provisions as part of an indissoluble pattern.
I see the argument put forward by my noble and learned friend Lord Scarman. It was a package in the eyes of the Law Commission. I agree with the noble and learned Lord, Lord Gardiner: prima facie one should treat the Law Commission as right. I regard myself as the trustee for the Law Commission in this House. I have tried, inside Government circles, to implement as many of its proposals as I could in the order in which I thought them important and not necessarily in the order in which they were delivered. At the same time, I do not regard these two points as indissolubly linked. If co-ownership be right, then I think they are linked as a matter of convenience and desirability. So long as there is a question mark. I think there is a question mark about their indissolubility.
One of the sad things—though I hope this debate may have put it right—about the sequelae of the Law Commission's report is that after its publication I sought reactions from the legal profession generally and from sections of the public with a particular interest in the Boland problem and its solution. But alas! no more than a handful of comments has come back so far, and I think it would be unwise to offer even a tentative view on the eventual outcome. However, my noble and learned friend has introduced a debate which will be studied by the Government and my office and will to some extent remedy the defect in the reaction to the Law Commission's report, because it has been singularly well-informed and will be very helpful in the advice about Government policy which in the end I shall have to give to my colleagues. I hope, too, that the reports of this debate, if they percolate 662 through to a wider circle, will excite further comment both from those who are interested in land registration and those who are interested in matrimonial property, and certainly whatever has been said will be taken account of most seriously.
I have dealt with the question by my noble and learned friend Lord Simon of Glaisdale about the promise of early legislation. Obviously, when those whose views have been sought have given us an answer we shall give prompt consideration to its inclusion in some future Government programme. I can see no chance this Session, and if there were any chance I should put my money on Law Com. 112. The Government are not convinced one way or another on the indissolubility of the two groups of proposals, but I have tried to give the best answer I can at this stage. I may change my mind—I am notorious for sometimes doing so, and I reserve the right to do so—but I do not myself regard the proposals as indissoluable.
As regards the first question, the Government have no concluded view on the totality of the recommendations. That does not diminish the value I place on the Law Commission's report, although I have been very candid with the House in saying that there is another report that I shall try to legislate before this one. I think that other one is more important, and I believe that the amount of human unhappiness which is caused by the matters it deals with justifies my giving it priority.
Having said that, there are a few comments I wish to make about the more recondite aspects of the matter. If one assumes for a moment that, at any rate in principle, it is true, as the noble Lord, Lord Mishcon, suggested, that co-ownership can be severed from the rest of the problem and can be treated independently, a relatively straightforward solution might be simply to restore the decision of Lord Templeman at first instance. That would mean that the wife who had no legal interest in the home, but had an equitable one, would be protected if she registered. The objections to that have been well stated, and I shall not rehearse them again.
I think that there is a tendency to underestimate the extent to which a wife's interests may be protected under the existing registration law. Mrs. Boland, for instance, could have protected her interest in at least three ways: first by registration (under Section 58(3) of the Land Registration Act); secondly, by a caution (under Section 54 of the same Act); and, thirdly, by the registration of a right of occupation under the Matrimonial Homes Act. It was I think as recently as 1981 that the noble and learned Lord, Lord Simon of Glaisdale, earned the gratitude not only of the House, but of the community, by introducing the Matrimonial Homes and Property Act, which improved and refined that protection.
While not wishing to minimise the difficulties created by the Boland case, or the prejudice that might result from its reversal, it must be said that it has been part of our law for over a year now, and that in fact conveyancers have come to terms with it—and come to terms with it fairly well. Contrary to their predictions, the world has not come to an end as a result of the decision in Boland in the Court of Appeal and the House of Lords.
663 Conversely, I must say that the victory that Boland appeared to have won for wives in their struggle with their husbands' creditors has now been demonstrated by the Law Commission to have been a modest, if not hollow, one. Admittedly Williams and Glyn's Bank failed in its attempt in the particular case in question to enforce its charge on the home, but if it had gone one step further and issued a bankruptcy notice against the husband, then the house would have had to be sold under the bankruptcy. The Boland problem may be a tough nut to crack, but it may very well be that it is not so hard or so tough that we need to resort to a sledgehammer.
I think that I have tried to apply, as I always do in these debates, a critical eye to the speeches that have been made. When all the speeches have been one way, I do not think that it is my business to say, "How-splendid!" and then leave people to think that there are no arguments on the other side. I retain the horns and tail of the advocatus diaboli which I assumed in the first of our two debates. Nothing that I have said diminishes my gratitude to the speakers, and nothing that I have said diminishes in any way the welcome and the admiration that I have already extended to the noble and learned Lord, Lord Templeman.
§ 7.33 p.m.
§ Lord Simon of Glaisdale
My Lords, with an important debate still to come, your Lordships will excuse me if I do not try to cover all the points raised—in particular, since many of them were answered conclusively in later speeches. I refer in particular to the speech of the noble Lord, Lord Mishcon. which was conclusively answered by the noble Lord, Lord Hooson. I am sure that he was right in saying that the Law Commission looked at the problem as a whole. It is quite unacceptable, it would certainly outrage every woman's organisation in the country, if one picked out the part that was acceptable to banks and conveyancers.
I should, however, like to mention three particular speeches. The first is that of my noble and learned friend Lord Templeman. Those of your Lordships who had not previously heard him and who have now heard his maiden speech, will understand well the reputation that he has for clarity and felicity of utterance on difficult subjects. The second speech is that of the noble Lord, Lord McGregor of Durris, who modestly described himself as a layman. He was I think the only non-lawyer who spoke, but of course he knows as much as, if not more than, any lawyer about this branch of the law, and he adds to that his great expertise as a sociologist.
The third speech is that of my noble and learned friend on the Woolsack, because it stands unanswered. When he says that he regards it as far more important to legislate to remove the grievances of divorced husbands than to legislate to ensure the rights of a woman who stands by her marriage in the matrimonial home, I can only say that I completely disagree. I would ask him to weigh the letters that MPs send on from constituents against the evidence of the social survey that was quoted by the noble Lord, Lord McGregor.
664 I say again, as I said at the beginning, that to pick and choose in a report where the Law Commission looked at the matter as a whole could not possibly be accepted. The noble and learned Lord suggested that since 60 per cent. of people in any case live in co-ownership, it was not worthwhile legislating for the 40 per cent. To that there are two answers. One is the striking phrase of the late Professor Freeman, who lost his life so tragically outfacing a mugger, that the law must take account of the pathology of legal and social institutions. The second answer is that the Law Commission obviously did not take the same view after two years' scrutiny as that taken by my noble and learned friend on the Woolsack. Having said that. I beg leave to withdraw the Motion.
§ Motion, for Papers by leave, withdrawn.