I move: "That the Bill be now read a Second Time."
The primary purpose of the Bill is to protect the members of the family of a vindictive spouse from having their home sold or otherwise disposed of by him over their heads. The Bill is also directed towards actively encouraging spouses to place the family home in joint ownership, by the abolition—in section 13—of stamp duty, court fees and registration fees on transactions transferring ownership of the home from one spouse to both spouses jointly.
The Bill, thirdly, proposes changes in the present law so as to give a spouse greater opportunity to clear off mortgage or rental arrears that the other spouse may have accumulated. Finally, the Bill provides for a wide-ranging protection for a family against the improper sale or removal of household chattels.
The main feature of the Bill is, as I have mentioned, the protection of the families of vindictive spouses from having the family home sold over their heads. I should, incidentally, mention at the outset that although the Bill is drafted without discrimination between the sexes, I propose for convenience to refer in my remarks to "the wife" and "the husband" in cases where it is more likely that one or the other would be involved.
The question of what is the most suitable legal machinery for giving effect to the policy of protecting families from vindictive sales is not an easy one to resolve. Although there are a number of possible approaches towards solving the problem, each with its advantages and drawbacks, two types of approach would appear to have the most to be said in their favour. These are, firstly, a registration system, whereby a wife who registers a charge or caution against her husband's property will be protected, and, secondly, what may be called a "consent" system, whereby the consent of the wife to the sale of the family home by the husband will as a general principle be a precondition of the validity of the sale.
For reasons that I will mention presently, the Bill has adopted the second solution, of requiring the wife's consent. However, I believe that, at the outset, I ought to explain why the Bill has not adopted the registration system, which admittedly has a number of beneficial aspects. That system has been adopted in England by legislation in 1967 and was recommended—in a particular context to which I will refer later—by the Committee on Court Practice and Procedure in their very valuable Report on Desertion and Maintenance.
The registration system has, as I have said, a number of beneficial aspects. It is relatively simple. It presents few conveyancing difficulties. A woman who has been advised by a solicitor will be able to protect her position by registration of a charge and rest assured that the home will not be sold over her head.
However, the registration system has weaknesses that I believe render it an insufficient solution to the problem of vindictive sales. Firstly, the wife's protection is entirely dependent on her taking the positive step of registering a charge against her husband. Quite clearly, as between a husband and wife, registration would be at best an unfriendly and in most cases a positively hostile act. Where the spouses were getting on well together it would be unusual for a wife to register a charge. Moreover, even where the relationship with her husband had deteriorated, a wife might hesitate for a long time before taking the step of registration, which could very easily damage their relationship still further and could even be the final factor leading to a separation. It is necessary to keep in mind that registration, if it is to serve its purpose at all, must be open to be seen by anybody—and, therefore, by the husband. She might, accordingly, decide to hold back from taking such a step. On the other hand, under this system, so long as the wife does not take the step of registering, she is given no protection, and there is a danger that she will wait too long in a number of cases.
Secondly, a registration system will not provide any protection in cases where the husband literally walks out of the home, having secretly arranged for its sale behind his wife's back.
The weaknesses of a registration system have been commented upon by a number of writers, among them Professor Bromley, in Family Law (4th edition, 1971) at pp. 393-394, Professor Khan-Freund of the University of Oxford, in an article in volume 33 of the Modern Law Review p. 601, at p. 614 (1970), and Mr. Cretney, also of the University of Oxford, in Principles of Family Law (1974), at p. 174. Cretney makes the point—which I think is a good one—that the protection afforded by a registration system —[and I quote]
would be more generally effective if it were a matter of routine to register a charge in favour of the wife whenever a matrimonial home is bought. If relations remain good no one would suffer. If there were discord the wife would be adequately protected without the necessity of taking a step which may be practically difficult, and will be seen as a hostile act. This is not the present practice.
I have no doubt that if we were now to introduce a system relying on registration we would find the same thing, that is to say, the registration of a charge would not be arranged as a matter of routine—and, when one thinks about it, that is not surprising because if a couple, at the time of their marriage, were disposed to bother to register the charge on the matrimonial home, why should they not take the more straightforward step of having the home in their joint names?
The basic weakness in a registration system has been concisely expressed by Professor Crane: "In an apparently successful marriage there may not seem any need to register until too late". The quotation is from The Matrimonial Homes Act 1967, 32 Conveyancer (New Series) p. 85, at p. 95 (1968).
For the reasons that I have outlined, therefore, the Bill does not base the protection that it affords on a system of registration. Instead, it adopts the more direct solution of providing, by section 3 (1), that where one spouse, without the consent of the other, purports to convey any interest in the family home, such a conveyance is to be void. This general principle is subject to two conditions that I will mention in a few moments.
Under the Bill, if a man wishes to sell the family home, he will have to obtain the written consent of his wife before doing so. In most cases—indeed, almost every case—this will present no problem. The decision to sell will be a joint decision and the wife will readily give her consent. However, there will be cases where the wife refuses to give her consent. As a general rule, I think it is fair to say that these are cases where the relationship between husband and wife is already a bad one. It may be a case where, for instance, the wife has already been virtually deserted by her husband and he may be offering her significantly less attractive accommodation in place of the home in which she is residing. If the wife refuses to provide her consent, the Bill proposes—in section 4—that the husband may apply to the court requesting it to dispense with her consent but the court is to do so only where it considers that it was unreasonable for her to withhold consent. In determining this question, the court is to take into account all the circumstances of the case, including the needs and resources of the spouses and their dependent children and, where the husband is offering alternative accommodation, the suitability of that accommodation in comparison with the home that the husband is proposing to sell.
Section 3 (2) gives protection to a bona fide purchaser for full value who proves that he has taken all reasonable steps and made all reasonable inquiries in regard to the purchase from a husband who turns out to have sold the home without his wife's consent. This protection is necessary since otherwise, in many cases, purchasers would always have a cloud of uncertainty hanging over their title. They might have taken all reasonable steps to check the matter but they could never be fully satisfied about the security of this title. In a case where the vendor appeared to be a bachelor there would always be a chance that a wife might turn up—perhaps from abroad—sometime in the future. In the case of an apparently married man who was selling a home with his wife's consent, the purchaser could have no guarantee that the woman with whom he was living and who provided her consent was, in fact, his wife, since the man might be bigamously married. Moreover, if one looks at it from the point of view of a vendor who is in fact a single man or a single woman, it will be obvious that serious problems could be created because the vendor would be called on, in effect, to prove a negative, namely that he or she is not married and the difficulties of proving that negative could be so great that some would-be vendors could find it very difficult to sell their homes since would-be purchasers might tend to buy from married couples where the question of consent would be less likely to cause difficulty.
Accordingly, as I have said, bona fide purchasers are protected under the Bill, but only where they have provided full value and can establish that they have taken all reasonable steps and made all reasonable inquiries in relation to the purchase. I would emphasise that the onus of establishing that this was so will be on the purchaser if the matter is challenged. I suggest that this is the correct approach as a precaution against collusive sales and because a purchaser who was in fact bona fide would find no particular difficulty in satisfying the court to that effect. Because of this provision, I think we can safely assume that the chances that a husband could successfully evade the provisions of the Bill would be very low indeed but as a further safeguard, which should reduce evasion virtually to zero, section 14 makes it an offence with a possible sentence of imprisonment for five years for the husband to give false information to a purchaser.
I have already spoken of the weakness of a registration system as a protection for a wife, but the weakness derives not from the system itself but from the fact that many women would be unlikely to avail themselves of it. This, however, is not a reason for excluding registration as an option and section 11 enables a wife to register on the title of her husband's property the fact that she is married. By doing this, she will ensure that the defence of bona fide purchase can never be sustained against her. Still further protection is afforded by section 5 of the Bill, which enables a wife to obtain a court order similar to an injunction where her husband is intending to sell the home over her head, and which entitles her to seek financial compensation against her husband for herself and the children if her husband actually succeeds in disposing of the home. I will be saying more about these sections shortly.
An exception to the requirement of consent is covered by section 3 (2) which provides that the wife's consent will not be required in relation to a conveyance that is made pursuant to an enforceable contract to make the conveyance where the contract was made before the marriage. The most important case covered by the section is where the man, before the marriage, has contracted to sell a home. Clearly, the law could not provide that his fiancee's consent would be required at that stage. Equally clearly, however, the man could not be relieved of his contractual obligations simply because he had married before the formal conveyance had been effected, and to allow such a thing to happen would be more likely to result in collusion between husband and wife, against the interests of the purchaser, than to result in bona fide protection for the wife. This is especially so when it is borne in mind that the question would be likely to arise, if at all, only very shortly after the marriage.
There is one aspect to the question of legal protection against vindictive sales that I think ought to be stressed since it might otherwise tend to be overlooked or misunderstood. This is the question of compulsory disposition of the family home.
As Deputies will have noted, what is prohibited by section 3 is any conveyance of the family home by one spouse without the consent of the other. "Conveyance" is given a very wide definition—in section 1 (1)—so that, for example, where a husband wishes to mortgage the home or, more usually, where he wishes in the first place to purchase the home by means of a mortgage, he will have to obtain the consent of his wife. In practice, of course, in all but a very small minority of cases, his wife will give her consent for the very same reason as he himself seeks the mortgage arrangement, namely that, for the great majority of couples, unless a mortgage is obtained, they will have no prospect of purchasing the home. However, if a husband is seeking to create a mortgage on a home that he owns outright or if he is seeking to obtain a second mortgage, the position is different in that the purin pose for doing so will not be to acquire the home but rather to retain it in the face of financial pressure or else to raise money for some business or other purpose. In the latter type of case, a wife's consent may not be so readily forthcoming, and indeed may not be forthcoming at all, and this too, I believe, serves to demonstrate the value of the Bill. The husband may, for example be seeking to raise a mortgage for reasons that may be frivolous or worse—he may, for example, be attempting to finance a gambling debt or drinking spree. In such a case the wife may put her foot down and refuse to give her consent inviting her husband to appeal to the court if he considers that she is being unreasonable. By this means the wife will have quite a considerable veto even over what I might call incipient steps that could, over a period, lead to the loss of the family home.
Whilst the consent of the wife must be obtained for the creation of a mortgage on the family home, her consent will not, of course, be required where, in cases of default in the mortgage payments, the mortgagee seeks to exercise his statutory powers of possession or sale of the home. The Bill does propose changes in the law designed to assist the wife in cases where there has been default in payments. I will be discussing these in more detail shortly. It would, however, be anomalous—and, as I shall mention in a moment, detrimental to the interests of the great majority of couples seeking to purchase their own home—if the law were to say, in effect, that while a mortgagee could exercise his statutory powers against one of the marriage partners, the other partner could veto the exercise of that power.
The reason the Bill permits the mortgagee to exercise the present rights of possession and sale is that to restrict or remove this right if the wife refuses to give her consent would make a mortgage an entirely unsafe if not indeed a worthless security on which to advance money since the obvious consequence would be that the wife would virtually always refuse consent in the joint interest of her husband and herself. It would, in effect, mean that money would not be advanced for house purchases since there would be no protection for the mortgagee if the husband should default. The result would be that couples seeking to buy a home would find it far more difficult, if not indeed impossible, to raise the money for the purchase price.
The same principles apply in regard to landlords of rented property. If a landlord, when a tenant defaults on the rent, were required to obtain a wife's consent before he could give an effective notice to quit, he would not want to rent in the first place to married couples, since he would, in effect, be creating a tenancy terminable by the tenants—nominally the wife but in practice by both jointly—but not terminable by the owner.
That this is a valid analysis is shown by experience elsewhere. In England for example where, as I have mentioned, a registration system of protection operates, the wife will in almost all cases postpone or release her statutory rights in favour of a mortgagee. As Cretney has observed, "in practice no mortgagee would lend money on a property subject to a...charge" in favour of the wife —Principles of Family Law, at page 169. Cretney also points out, at page 175, that to give the wife protection against a mortgagee in such cases or against creditors of her husband if he goes bankrupt would——
imply a policy of throwing the social cost of housing deserted wives onto individual creditors (rather than society as a whole) whose implications would be very far-reaching.
I am aware that arguments have been advanced by some commentators that a matrimonial home should be specially protected against creditors and there is, in some countries, a certain limited protection —which, however, a number of those countries seem very reluctant to extend in any substantial way, a point which I think has its own significance. Be that as it may, I do not believe that it is possible to argue a case of this kind without reference to what I might call the social context in which the arguments arise. We have to keep constantly in mind that mortgages are a means of acquiring homes in this State and that a law that might appear to be—or indeed that might in fact be—beneficial to one particular husband or wife, or to both jointly, could, by reason of its being on the Statute Book, make for difficulties for a great number of other couples. Perhaps the best way to sum it up is to say that what this Bill sets out to do—in the sections we are now speaking of—is to protect a wife against a vindictive husband; any argument about protecting either or both of the spouses against execution by creditors is one that raises issues far beyond the scope of this Bill.
The definition of "family home" proposed by the Bill may require some explanation. Section 2 (1) provides that the expression means primarily a dwelling in which the couple ordinarily reside. However it also extends to a dwelling in which a spouse whose protection is in issue—in the ordinary case, the wife—ordinarily resides, as well as a dwelling in which the wife ordinarily resided before leaving, if she has left with just cause. I will give a couple of examples of cases which may make the position clearer.
Where the couple are living together there will generally be no problem: the house in which they are ordinarily residing will be the family home. This will be a question of fact in every case. It is worth nothing, in passing, that there may be more than one family home in that sense in certain exceptional cases, in which event the protection afforded by the Bill will cover both of these dwellings. If a wife is living apart from her husband—for example, where he has deserted her—the home in which she is actually living will be a "family home" for the purposes of the Bill. This, of course, is essential. It would totally defeat the purposes of the Bill if protection were not to extend to the case where it might be most likely to be required, namely, the case where the husband has left his wife and is looking for cash—by the sale of the house—in order to set himself up in a new relationship.
The third type of home covered by the definition is one in which the wife formerly ordinarily resided before she left with just cause. Thus, for example, if a wife left the home on account of her husband's violence, her consent would be required before he could sell the house that she left. Moreover, if she moves to a house in which her husband has a legal interest, the house will also be a family home for the purposes of the Bill and will be afforded protection accordingly. Technically, if one reads the definition by itself, it will be seen to apply even if the husband has not a legal interest but it is only where he has that the question of the conveyance of such an interest could arise. A situation could arise however in which the wife had gone to live in a house in which the husband had no legal interest but had an interest in the household chattels. The Bill extends protection to the chattels in such a case.
The question may arise in certain cases as to what exactly comprises the physical limits of the family home. Subsection (2) of section 2 defines "dwelling" so as to include a building, structure, vehicle or vessel that is:
occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.
Whilst no difficulties will arise in the case of a suburban semi-detached home, for example, it might not be so easy in certain cases to say where the family home ends and where, for instance, a farm or a business premises begins. In practice, the question should not give rise to major problems, since it should be easy to identify what should be regarded as "going with" the residence. In the overwhelming majority of cases, of course, the question is not even going to arise since a wife will be perfectly willing to give her consent, if required.
Returning to the central provisions of the Bill regarding the consent of a wife, may I invite the attention of Deputies to an important provision contained in section 4 (3). The subsection, in effect, provides that where the wife is in desertion, the court is to dispense with her consent. "Desertion" here includes constructive desertion, which would arise where the wife had so seriously mistreated her husband as to justify him in leaving her. It would seem to be only fair that a wife who is in desertion, and who, accordingly, is not entitled to be maintained by her husband, should not have the right to veto an intended sale by her husband. However, it will be the task of the husband to establish to the satisfaction of the court that his wife is in desertion before he will be permitted to sell the home. I may mention that a minor drafting amendment will probably be necessary to copperfasten the position in this regard.
Section 4 (4) proposes that where a wife is suffering from mental disability or cannot be found, the court is to give its consent to a proposed sale by the husband if it considers it reasonable to do so.
I turn now to section 5, which I have already mentioned briefly. The purpose of the section is to give a wife a legal remedy in two cases. The first, which is a dealt with by subsection (1), arises where the wife establishes in court that her husband:
is engaging in such conduct as may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home with the intention of depriving the wife or a dependent child or children of their residence in the home.
The classic type of case that we are envisaging here is where a vindictive husband, thwarted by section 3, which requires his wife's consent to the sale of the home, devises some plan to get her out of the home by indirect means. He may, for instance, suffer a judgment in collusive proceedings brought by a friend. The ultimate result would be that the home would be sold to satisfy the judgment and the wife would be turned out. Another approach, more directly intimidatory, might be for the husband to interfere with the structure of the house or to remove the slates so as to make it uninhabitable and to force his wife out. These types of intentional conduct whereby the husband intends either to engineer the loss of an interest in the home—"interest" being broadly defined in section 2—or else to make the home effectively uninhabitable— are covered by section 5 (1). The wife, if she is aware of her husband's intentions, may obtain from the court what in effect is an injunction, the scope of which may be very wide since the section permits the court to "make such order as it considers proper...".
Subsection (2) of section 5 is concerned with cases where the husband has already deprived the wife or children of the residence in the home by conduct that either resulted in the loss of any interest in it or by having made it effectively uninhabitable. In such a case the court may order the husband to pay to the wife such amount as it considers proper to compensate her and the children for their loss or order him to restore the home to a habitable state.
The courts are thus given a wide discretion, and I believe that they are likely to exercise it in a fair and sensible manner. However, as I mentioned in the debates during the passage of the recent Family Law Act, when discussing new provisions relating to maintenance and exclusion of a violent spouse from the family home, only time can tell how the courts will discharge their new functions. Some time it may be necessary to amend the provisions that are proposed in section 5 of the Bill, but I hope and believe that this is unlikely in the foreseeable future and that the section will be both adequate and reasonable in its practical effect.
Taking all these sections together, I am fairly confident that this machinery of protection will effectively solve the problem of vindictive sales. Although it involves the creation of a wide-ranging mesh of legal rights, the practical effects will be likely to be negligible in relation to the overwhelming majority of married couples. The most that it will normally involve is the addition of the wife's written consent to the conveyance of the family home, a matter that will be of little significance to either spouse where the relationship is in any way reasonable. However, in cases where things have gone wrong, the wife will have effective remedies with which to protect the interests of her children and herself.
I turn now to sections 6 to 8 of the Bill, which provide assistance for a wife whose husband has defaulted on mortgage or rental payments. Under present law the mortgagee or landlord, as the case may be, is not required to pay any attention to the position of the wife when taking proceedings for possession or sale of the family home. This is not to say that mortgagees have in fact tended to ignore the position of the wife and children. Indeed the general experience in this country has been quite the opposite: mortgagees have gone to considerable lengths not to stand on their legal rights if there are any reasonable prospects that the defaults will be paid off by either spouse. However in strict law the wife's position is not strong. Accordingly section 6 proposes that where the wife's makes payments on the mortgage or lease in discharge of her husband's liability the mortgage or landlord must accept the payments. Under present law he is not obliged to do so.
Subsection (2) of section 6 is a technical provision designed to ensure that the fact that the mortgagee or landlord has treated the payments as having been made by the husband will not have any effect on a claim by the wife against her husband in respect of these payments for a beneficial interest in the home.
If I may be permitted to digress slightly at this point from my description of the major provisions of the Bill, may I reiterate what I have said on previous occasions in this House and elsewhere in regard to the harm that is done to the interests of wives by statements to the effect that a wife who continues to make the mortgage repayments on the family home when her husband deserts her acquires no beneficial interest in the home. This is not the case at all, and I repeat that some cases have come to my notice—and there must be a number of others in fact—where wives have been led to overlook their legal rights as a result of this mis-statement of the law.
Incidentally, while I think it right to stress that the law as it stands provides this protection, I do not mean to imply that the way in which this right is expressed is not capable of being expressed more clearly and more fully. I intend in fact to look further at this point with a view to seeing whether an amendment could usefully be made. If it appears on further examination that such an amendment would be desirable, I would hope to introduce it on the Committee Stage of the present Bill.
To return to the provisions of the Bill: sections 7 and 8 propose that in proceedings for sale or possession of the family home by the mortgagee or landlord, where there is a prospect of the wife's being able to pay off the arrears or repayments within a reasonable time as well as being able to pay the current payments as they fall due, the court may adjourn the proceedings to see whether she is able to do so. If she is, the court may by order make a declaration to this effect, and if it does so any term in the mortgage or lease that would have the effect of making all sums due become immediately payable as arrears, in addition to the actual arrears themselves, will be of no effect.
I now turn to section 9 of the Bill. This is the section that introduces a system of protection in regard to the household chattels.
I should say at the outset of my remarks on this section that I thoroughly endorse the observations of the Ontario Law Reform Commission in its Report on Family Property Law, 1974, page 146, to the effect that—and I quote:
Where a marriage is sound, property rights in the household goods, as between the spouses, are, generally speaking, irrelevant. It is only during that critical period when the spouses are no longer able to adjust their differences by agreement and compromise that the owner of the household goods might consider asserting legal rights, and pursue self-help courses of action based thereon.
This is an area of the law where the common law jurisdictions, in contrast to the civil law countries, have been slow to afford protection. In France, Scandinavia and Germany, for example, there are legal prohibitions on the sale of household goods by one spouse without the consent of the other. The same is true in some of the eight states of the United States that have a community of property regime: reference in this context may be made to de Funiak and Vaughn's Principles of Community Property, at p. 288, 2nd edition, 1971.
The only common law country in which similar protection is actually on the statute books appears to be New Zealand. There, a provision introduced by legislation in 1968 prohibits the sale, disposition or removal of furniture from the home where proceedings for a separation order are pending, unless the permission of a magistrate or registrar is given.
I believe that the provisions contained in section 9 of this Bill afford protection that is justified and at the same time sufficient. I think they are based on principles of common sense and fairplay. Once again, I stress that they have no relevance in the vast majority of cases but, in regard to the small minority, this section should, by its existence on the statue book, serve to lessen at least some of the tensions and anxieties that afflict spouses when their day-to-day relationship gets into difficulties.
Subsection (2) of section 9 prohibits the disposition or removal by a husband without the consent of his wife of any of the household chattels when matrimonial proceedings between the spouses are taking place. Where a wife refuses to give her consent the husband may apply to the court for its approval of the proposed disposition.
The definition of matrimonial proceedings includes guardianship proceedings and proceedings under the Family Law (Maintenance of Spouses and Children) Act relating to joint ownership of the household allowance, or property acquired out of the allowance, as well as proceedings under that Act for the exclusion of a violent spouse from the family home. These may reasonably be expected to be proceedings that in some cases may occasion a degree of vindictiveness likely to tempts a spouse to take somewhat desperate steps. As Louis Nizar has observed:
There is no limit to the blazing hatred, the unquenchable vengefulness, the reckless abandonment of all standards of decent restraint, which a fierce matrimonial contest engenders.
The quotation is from My Life in Court, page 154, 1944.
While the common law already affords some protection to the wife in cases where her husband molests or intimidates her family or herself, by enabling her to obtain an injunction against her husband, the criminal sanction has been included since it is likely to constitute a more immediate and effective deterrent.
Subsection (4) enables a wife in cases where her husband has actually sold or otherwise disposed of such a number of chattels as to make it difficult for her and her children to remain in the home without undue hardship or where he has committed an offence under subsection (2), to apply to the court for compensation. The court may order the husband to return the chattels or it may order him to provide a substitute for them or money in lieu.
In the normal case such an order will only affect the husband, but where the wife has informed a third party in writing that she intends to take proceedings in regard to the chattel, then the court in making an order under the section will be entitled to affect the interests of the third party.
I turn now to section 10 of the Bill. This section is concerned with the question of jurisdiction. It provides that generally the Circuit Court and the High Court are to have concurrent jurisdiction, but that over certain maximum monetary limits specified in subsection (4) the defendant in proceedings that have been taken in the Circuit Court may require that they be transferred to the High Court. Subsection (3) provides that, where either spouse is a person of unsound mind and a committee of his or her estate has been appointed, the jurisdiction is to be exercised by the court that appointed the committee, subject to subsection (4), which I have just mentioned. The District Court is given jurisdiction to deal with disputes regarding the household chattels where the value of the chattels in dispute does not exceed £1,000.
The section also provides that proceedings under the Bill are to be heard otherwise than in public. The same course was adopted in relation to proceedings under the Family Law (Maintenance of Spouses and Children) Act, which has recently become law. Whilst there are arguments both ways on the question of the desirability of privacy of proceedings, I believe that, on balance, it is better that proceedings under the Bill should not be heard in public.
I have already referred to section 11. Its purpose is to enable a wife to register on the title to her husband's property a notice of the fact that she is his wife. If she does so, no purchaser from her husband will be able to establish title in derogation of her interests since the purchaser will be unable to show that he has taken all reasonable steps in regard to the purchase. The section, however, makes it clear that there is no obligation on her to register such a notice. If she does not do so, the purchaser is not entitled to assume that there is no wife. This is the essential difference between the system proposed by the Bill and the general registration system that I discussed earlier. Registration in the Bill is proposed as a subsidiary support for an anxious wife who fears that her husband may try to sell the home behind her back. The primary protection is afforded by section 3 which requires the husband to obtain her consent as a general precondition of the validity of a sale.
Section 12 is a technical section designed to blend the provisions of the Bill with the Registration of Title Act, 1964. Section 13 is an important provision in the Bill. It proposes that, in future, no stamp duty or registration fees will be payable on any transaction creating a joint tenancy between spouses in a family home where the home, immediately before the transaction, was owned by one of the spouses or by both of them other than as joint tenants—as tenants in common, for instance. This provision is designed to encourage spouses whose family home is owned by one of them to place the home in joint ownership.
I am very glad to say that my information is that in recent years there has been a strong and growing trend amongst married couples setting out to buy the family home to place it in joint ownership. A similar trend is clearly discernible in England as is disclosed by Todd and Jones in Matrimonial Property, at page 77-83 (1972). One factor—I do not say it is the only one—that has influenced this is that lending institutions have shown a willingness to co-operate in such arrangement by raising no difficulties about lending to both spouses jointly. As far as I know, this was not the case in earlier years and it is reasonable to assume that many couples who did not feel they had any real option in the matter when contracting to buy their house perhaps ten, 15 or 20 years ago would wish to transfer to joint ownership if the cost of doing so was not significant. I am therefore very glad to be able to introduce this provision whereby the State will do its part by waiving all revenue duty and court and registration fees. There will be no doubt some cost involved as the transactions will normally be arranged by a solicitor but the fees for a transaction such as this would I hope in most cases be small.
Section 14 is the criminal provision to which I have already referred. It makes it an offence punishable by up to five years imprisonment for the husband to hide from a purchaser the fact that he has a wife—or, for instance, that the premises he is selling are a family home. The section makes no reference to a fine because the ordinary law would permit a court to impose any fine it thought fit without being expressly authorised to do so. The section is without prejudice to any other liability, civil or criminal—proceedings based on fraud, for example. The maximum penalty therefore, is severe and I think that is as it should be since it is easy to see that the circumstances could be such that a grave or even irreparable wrong could have been done to a wife and it is therefore advisable that the maximum penalty should take account of that possibility.
This concludes my outline of the major provisions of the Bill. I would now like to mention briefly why the Bill differs somewhat from certain other solutions that have been proposed.
First, I wish to refer to the Nineteenth Interim Report of the Committee on Court Practice and Procedure, under the Chairmanship of Mr. Justice Walsh, entitled "Desertion and Maintenance". Most of the recommendations in that report were incorporated in the recently enacted Family Law (Maintenance of Spouses and Children) Act and the House will not need to be reminded how helpful the report was in that connection.
One of the reports recommendations was to the effect that the protection of the family home should be secured, where the spouse against whom a maintenance order has been made is the legal owner, by the registration of the maintenance order as a lis pendens, the effect of which would be to prevent a sale in such a case without leave of the court. However, as I mentioned during the debates on the maintenance legislation, this proposal was made in the context of the committee's terms of reference which were concerned with maintenance proceedings. The problem of the sale by a vindictive spouse could, though, arise even in cases where there has been no failure to maintain and that is why the Bill proposes a more farreaching protection.
Another recommendation in regard to the sale of the family home was made by the Commission on the Status of Women in their report. The commission recommended that a system of community of property be examined but, no doubt as a shorter term idea, they recommended the introduction of a system of protection against vindictive sales that would require the husband to consult with his wife before disposing of the home. If the wife did not agree with the proposed sale she would have the right to apply to the court within a specified time and the court would be given power to veto the proposed disposition if it considered that "undue hardship" would be caused to the wife and children.
As Deputies will appreciate, that proposal bears a resemblance to that proposed by the Bill, the important difference being that it placed the onus on the wife to go to court if she objected whereas the Bill proposes that the onus shall be on the husband, that is on the spouse who seeks to disturb the status quo. I do not believe that a system that required the wife to go to court in order to protect her interests in this area would provide a sufficient protection. The economic, social and psychological pressures on her would be too great in many cases. A somewhat similar recommendation in England, which would have put the burden of taking protection on the wife, has been criticised by commentators.
On the broader front, Deputies will have noted that the Bill proposes wide-ranging protection for the families of vindictive spouses rather than proposing a general regime of community of property between the spouses or, more specifically, compulsory joint ownership of the family home.
The immediate reason for adopting the approach in the Bill is one of practicality. The urgent social problem in this area of the law is that of the husband selling the home over the heads of the other members of the family. This problem, I believe, the Bill will resolve in a comprehensive and sensible manner. To have deferred publication of the Bill until such time as the very great legal complexities of community of property or joint ownership had been analysed satisfactorily would have been unjust to the families who are at risk, all the more so because when all the analysis had been done and perhaps published as a basis for public consideration and debate, there is certainly no guarantee that the public would want to adopt either a community of property system or a system of compulsory joint ownership.
To put this in better perspective, may I say that the necessary preliminary investigation, if done properly, could take years, as both the English Law Commission and the Ontario Law Reform Commission have found. For us in this country to have produced a Bill, therefore, without the necessary painstaking ground-work would have been irresponsible. The Bill that is before the House deals —successfully, I believe—with the major human problems in this area.
This does not mean that I am opposed to joint ownership of the family home. The whole tenor of the Bill makes it plain that I favour it enthusiastically. However, the much more wide-ranging questions of whether a compulsory system of joint ownership or a system of community of property would be desirable or acceptable are questions for another day.
Before concluding, I take this opportunity to say that I believe that the present law relating to the ancillary orders in respect of property that may be made in matrimonial proceedings may be in need of some change. This is, of course, a matter that is outside the scope of the Bill and that will have to be examined separately, I mention it only as a point of interest.
If I have spoken at what might seem too great a length on this Bill it is because I believe that it is an important piece of legislation. I look forward with interest to hearing the views of Deputies on the proposals and I commend the Bill to the House.