Amendments Nos. 47a, 47b, 48a, 51a, 51b, 52a, 73a, 86a and 91a are related and may be discussed together.
SECTION 9.
I move amendment No. 47a:
In page 9, lines 37 to 39, to delete subsection (1).
This group of amendments is being tabled in the light of the suggestions made during the discussion on section 2 for reducing the categories of matrimonial homes specified in the Bill. The Bill has since been re-examined with this object in view. The outcome is that section 10 is being dispensed with and I know that the Members will be happy with that. The result is that there will no longer be any need to refer in the Bill to a matrimonial family home or a former matrimonial residence. Also the existing definition of family home in the Family Home Protection Act is being made to correspond exactly with that of the matrimonial home so far as future transactions and proceedings are concerned.
Section 10, which it is now proposed to delete, was designed to facilitate the sale of a matrimonial home in which a couple had ceased to reside. They might be purchasing another home and selling the former one, they might be moving to another home but retaining the former one. When the former home is being sold, in most cases the couple would be anxious to complete the sale as quickly as possible. Section 10 facilitated this by making the owner spouse, that is the spouse whose name is shown on the title documents as owner or trustee for sale and therefore able to give a good title to a purchaser while being liable to account to the benefiting spouse for his or her half share of the purchase money.
On further consideration it seems that the special provision made for such matrimonial homes by section 10 is unduly elaborate and that the aims of facilitating a sale and protecting the benefit spouse's interests are better achieved by the provisions of section 9. Under that section a good title can be given to a purchaser once both spouses join in the conveyance even if only one spouse is shown as owner on the title documents. It is also possible under that section for one of the spouses to give a good title but only in specifically defined circumstances. Moreover, it is proposed that the definition of a "family home" in the 1976 Act will, in future, correspond with the definition of matrimonial home in this Bill. That will ensure that before the spouse shown on the title documents as owner can sell a former matrimonial home while the couple are living elsewhere, the prior consent of the other spouse will be necessary. That is the effect of amendments Nos. 86a and 91a.
Such prior consent is not necessary under the 1976 Act because that Act does not apply where the couple have ceased to reside in the home and have gone to live elsewhere. I understand that conveyancing practitioners operate on the principle, "once a family home, always a family home" and insist on the spouse's consent even in the cases I have mentioned so that the change proposed in the 1976 Act definition of family home will not make any difference in practice but it will bring the law into line with the practice and that is desirable.
Section 10 did have an advantage where it was necessary to sell the matrimonial home in which the couple had ceased to live and the non-owning spouse was incapable of joining in the conveyance because of some mental disability or because that spouse could not be found. The trustee spouse could give a good title to the purchaser. However, that situation will now be provided for by equating the definition of "family home" in the 1976 Act with that of "matrimonial home" in the Bill so that prior consent will be required under that Act even where the couple have left the family home and gone to live elsewhere.
If the consent is not forthcoming for any reason, as in the examples I have mentioned, the court can dispense with the consent of the spouse if it appears reasonable to do so. If it does, section 9 (3) specifically provides that a purchaser from the other spouses will get a good title freed from the interest of the spouse who has benefited under section 4 but without prejudice to that spouse's right of action against the conveying spouse for a half share of the proceeds of sale of the home.
The deletion of section 10 necessitates a number of consequential amendments of a drafting nature to sections 9 and 18. These amendments will simplify the Bill and following on from the discussion we had on section 2, will meet many of the concerns which were expressed when we debated section 2.
This does not meet many of the points made by our spokesman who suggested that it would have been preferable to have had a Act which would have consolidated the Family Home Protection Act and this Bill when enacted. However, as it goes some distance down that road, we broadly welcome the amendments which respond to some of the issues raised earlier.
It would be useful to Members if we would have the benefit of the document from which the Minister was reading. There has been substantial change from the points made earlier and what the Minister read was quite complicated. Members would like a copy or a summary of the changes to that amendment.
Amendment agreed to
I move amendment No. 47b:
In page 9, subsection (2), line 41, to delete "family".
Amendment agreed to.
We will move now to amendment No. 48. Amendment No. 50 is cognate and I suggest that we debate amendments No. 48 and 50 together. Agreed.
Amendment No. 48 not moved.
I move amendment No. 48a:
In page 10, subsection (2) (b) (iii), line 4, to delete "family".
Amendment agreed to.
I move amendment No. 49:
In page 10, subsection (2) (c) (i), line 7, to delete "his"and substitute "that person".
Amendment agreed to.
Amendment No. 50 not moved.
I move amendment No. 51:
In page 10, subsection (2) (c) (iii), line 12, to delete "on his behalf" and substitute "on behalf of that person".
Amendment agreed to.
I move amendment No. 51a:
In page 10, subsection (2) (c) (iii), line 14, to delete "family".
Amendment agreed to.
I move amendment No. 51b:
In page 10, subsection (3), line 20, to delete "family".
Amendment agreed to.
I move amendment No. 52:
In page 10, subsection (4), line 25, to delete "his" and substitute "that spouse".
Amendment agreed to.
I move amendment No. 52a:
In page 10, subsection (4), line 26, to delete "family".
Amendment agreed to.
I move amendment No. 53.
In page 10, lines 28 to 33, to delete subsection (5) and substitute the following:
"(5) On the death of a spouse who is entitled to a legal interest in a matrimonial home to which section 4 applied, that interest shall, notwithstanding Part II of the Act of 1965 and subject to the rights of any person other than the surviving spouse, vest in that spouse.".
I am moving this amendment on the suggestion of the conveyancing committee of the Law Society. Section 9 (5) deals with the situation where one of the spouses owned the full legal interest in the matrimonial home before the equitable interest in the home vested in both spouses as joint tenants under section 4. A nominal legal interest still remained vested in the legal owner. Now, on the death of the spouse who was the legal owner the beneficial interest in the home passes to the surviving spouse by survivorship but the nominal legal interest passes to the legal personal representatives of the deceased, together with any assets passing under the will or intestacy. It is necessary to transfer that legal interest to the surviving spouse so that he or she may be in a position to establish full title.
The present text of section 9 (5) proposes to achieve this result by requiring the personal representative to execute an assent vesting the legal interest in the surviving spouse. The conveyancing committee suggested, however, that the same result could be achieved more neatly and effectively by a provision for an automatic transfer of the outstanding legal interest to the surviving spouse in those circumstances. This is achieved by the subsection now being substituted for subsection (5) of section 9. A corresponding amendment was made to section 10 so that is an improvement.
This amendment is warmly welcomed. The Minister dealt with the point I raised yesterday when we were debating the section which limited the nature of the interest being awarded by the Bill to an equitable share in the ownership of the home. The main cause of concern was exactly these sort of occasions. This provision will probably be the one that will be of most benefit to the majority of people. If one is in conflict, this Bill will be by-passed by the Judicial Separation Act and, in many cases, without this amendment, it could have put extra demands on people at a very difficult time and require them to go through many legal procedures.
I welcome these amendments because they have dealt with that issue and, in the context of the death of a spouse, have transferred the total interest. That will be one of the changes that will most directly benefit women because it is at that time that many women realise they have not made a will and have not made proper provision. They have to start at a very difficult time going through what can be an expensive procedure or, if they cannot afford it, a slow and stressful procedure at a time when they are least able to do it. This is a very welcome amendment.
Amendment agreed to.
Section 9, as amended, agreed to.