House of Commons
Session 2005 - 06
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|Family Law (Property And Maintenance) Bill
These notes refer to the Family Law (Property and Maintenance) Bill as introduced in the House of Commons on 2nd November 2005 [Bill 73]
FAMILY LAW (PROPERTY AND MAINTENANCE) BILL
1. These explanatory notes relate to the Family Law (Property and Maintenance) Bill as introduced in the House of Commons on 2nd November 2005. They have been prepared by the Department for Constitutional Affairs with the consent of Rob Marris, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a provision or part of a provision does not seem to require any explanation or comment, none is given.
3. The Bill abolishes the common law duty of a husband to maintain his wife and the presumption of advancement as it applies between married and engaged couples.
4. It amends section 1 of the Married Women's Property Act 1964 so that money and property derived from a housekeeping allowance will be treated in the same way whether the allowance is made by a husband to a wife or a wife to a husband.
5. The Bill also provides for housekeeping allowances made by civil partners to be treated in the same way as housekeeping allowances made by spouses.
6. In 1997, the Government gave a commitment to ratify Protocol 7 of the European Convention on Human Rights. The United Kingdom has not yet ratified the Protocol because of concerns about the compatibility of domestic law and Article 5 of the Protocol.
[Bill 73-EN] 54/1
7. Article 5 provides that:
8. Clauses 1 to 3 of the Bill deal with the areas of concern in domestic law and thus make it possible for the United Kingdom to ratify the Protocol.
9. Ratifying Protocol 7 does not require that provision be made for civil partners, but clause 4 of the Bill amends the Civil Partnership Act 2004, so that, under the law of England and Wales and of Northern Ireland, civil partners and parties to a marriage are treated similarly as regards housekeeping allowances. Section 26 of the Family Law (Scotland) Act 1985 already provides for housekeeping allowances made by a spouse or civil partner.
COMMENTARY ON CLAUSES
Clause 1: Abolition of husband's duty to maintain wife
10. There is a common law duty upon a husband to maintain his wife. However, there is no similar duty on a wife to maintain her husband. Both husbands and wives have access to statutory remedies for obtaining maintenance (i.e. The Domestic Proceedings and Magistrates Courts Act 1978 and the Matrimonial Causes Act 1973). Clause 1 abolishes the existing common law duty in order to equalise the position between spouses.
11. The abolition of the common law duty has no practical effect, as there is no remedy by which to enforce it in any event. In Re C (A Minor) (Contribution Notice) (1994) 1 FLR 111 at 116 Ward J said:
Clause 2: Abolition of presumption of advancement
12. Subsection (1) abolishes the presumption of advancement as between married and engaged couples. Under this presumption as it currently applies, where there is no evidence to the contrary, if a husband transfers property to his wife, he is presumed to be making her a gift. However, if a wife transfers property to her husband no such presumption applies and so, in the absence of evidence to the contrary, the husband merely holds the property on a resulting trust for his wife. The same points can be made in respect of engaged couples. Clause 2 abolishes this rule so that there is no presumption in favour of one spouse (or party to an engagement) on the basis of gender.
13. Subsection (2) provides that the abolition of the presumption of advancement will not apply to any transfer made before clause 2 comes into force, nor will it affect any obligation incurred before the clause comes into force.
Clause 3: Amendments of Married Women's Property Act 1964
14. Under section 1 of the Married Women's Property Act 1964 (the "1964 Act"), if a husband pays a housekeeping allowance to his wife, any money or property derived from this allowance (in the absence of an agreement to the contrary) belong to the husband and wife in equal shares. But the 1964 Act is silent on housekeeping allowances paid by the wife to the husband so if the wife pays a housekeeping allowance to the husband then any money or property derived from it belongs to the wife only.
15. Subsection (1) amends section 1 of the 1964 Act so that it will no longer apply only to a housekeeping allowance made by a husband to his wife, but will apply equally to a housekeeping allowance made by either a husband or wife to the other. In both cases the money or any property purchased with it shall be treated as belonging to the husband and wife in equal shares unless there is an agreement to the contrary.
16. Subsection (2) provides that as a result of the amendment to section 1, the 1964 Act will now be cited as the Matrimonial Property Act 1964.
17. Subsection (3) provides that the amendments do not apply to any housekeeping allowance paid before the commencement of clause 3.
Clause 4: Civil partners: housekeeping allowance
18. Subsection (2) inserts a new section 70A into the Civil Partnership Act 2004 so that, under the law of England and Wales, housekeeping allowances made between civil partners will be treated in the same way as those made between married persons will be treated under section 1 of the Married Women's Property Act 1964 as amended by this Bill.
19. Subsection (3) inserts a new section 194A into the Civil Partnership Act 2004 so that civil partners in Northern Ireland will have the same rights as those given to married people by Article 18 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2005 (S.I. 2005/1452 (N.I.7)). Article 18 makes similar provision to that made in section 1 of the 1964 Act as amended by clause 3.
20. Subsection (4) provides that the amendments to the Civil Partnership Act 2004 do not apply to any allowance made before the commencement of clause 4.
21. Clauses 1 to 3 and 4(2) extend to England and Wales. Clause 4(3) extends to Northern Ireland. Clauses 4(1) and (4) and 5 extend to England and Wales and Northern Ireland.
PUBLIC SECTOR FINANCIAL COST
22. As regards clause 1, the abolition of the common law duty of a husband to maintain his wife has the effect of removing such basis for litigation as the common law duty now provides.
23. As regards clause 2, the current presumption about treating a transfer of property to a fianc,e or wife as a gift can be rebutted by evidence that a gift was not intended. The presumption or, after the Bill comes into force, the absence of a presumption, is relevant where parties disagree about the effect of a transfer of property.
24. Clauses 3 and 4 extend the current presumption about shared ownership of money or property derived from a housekeeping allowance made to a wife to cases involving money or property derived from a housekeeping allowance made to a husband or civil partner. Disputes about allowances made by wives or civil partners will be affected by the changes made by clauses 3 and 4.
25. Against this background, changes made by the Bill are likely to have a negligible effect on legal aid costs, because the persons who might seek advice in a dispute about money or property affected by the Bill are highly likely to be seeking advice, in any event, about that money or property (and very possibly about other money and property owned by one or other or both of the parties to the marriage or civil partnership) in connection with contemplated or actual proceedings under matrimonial or civil partnership legislation.
EFFECTS ON THE BILL OF PUBLIC SECTOR MANPOWER
26. We do not anticipate that the provisions of the Bill will have any effect on public sector manpower.
REGULATORY IMPACT ASSESSMENT
27. No Regulatory Impact Assessment has been carried out. The Bill would have no significant impact on business, charity or the voluntary sector. It is not envisaged that the Bill will incur any additional public sector costs for the reasons set out in paragraphs 23 - 26. Therefore, if there were any financial effect at all, it would be minimal.
28. Clause 5 of the Bill provides for the Act to be commenced by order of the Secretary of State.
|© Parliamentary copyright 2005
|Prepared: 29 November 2005