A Homestead Act For England?*
| Author | Alan Milner |
| Published date | 01 September 1959 |
| Date | 01 September 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00553.x |
A
HOMESTEAD ACT
FOR
ENGLAND?
*
PROBLEMS
of family disorganisation have probably received more
academic attention in recent years than any other legally regulated
field of social interaction. Moreover, with the fearful impact of
the
193945,
the Korean and the Middle-Eastern wars
on
the one
hand and the insecure economic conditions to which they have given
rise
on
the other, the emphasis has not been confined merely to
personal
family relationships but has also concentrated
on
questions
of
provision
for members of the shattered families. Matrimonial
(or
family) property law-as distinguished from any other kind of
property law-is now recognised. The modern developments of
deserted wives’ rights, occupational and proprietary rights in the
family home, beneficial and legal ownership disputes, now prickle
out from the law reports with porcupine-like profusion and call for a
wholesale re-appraisal of the value of existing legal dogma and its
function
in
changed social surroundings. A Royal Commission has
laboriously compiled a Report
on
many of the problems involved,
centenary studies of family developments since the Divorce Act of
1857
have appeared and a distinguished group of internationally
flavoured jurists has turned out the most complete and illuminating
study yet made of matrimonial property 1aw.l Everything has
dictated the need-the vital need-for
a
thorough analysis of family
problems by an adequately qualified body able to recommend, and to
produce the evidence with which to inspire, legislative action.
The Report of the Morton Commission on Marriage and
Divorce: however, both generally and with respect to matrimonial
property law in partic~lar,~ demonstrates the shattering
of
fond
hopes. With but one
or
two exceptions, its recommendations
show a distressing failure to interweave the strands
of
the
socioIogical data with the legal material which it nominally con-
sidered. The failure of the Commission to make generally acceptable
proposals and the absence
of
any extensive legislation forthcoming
+
The writer wishes
to
express his thanks
to
Professor Otto Kahn-Freund of the
London School of Economics and Professor Fowler
V.
Harper
of
Yale Law
School
for
their valuable comments in the preparation
of
this article.
1
Esp.
A
Cenfury
of
Familg
Law,
ed. Graveson and Crane
(1957);
McGregor,
Daoorce
in
England
(1957).
a
Matrimonial
Property
Law,
ed. Friedmann
(1955).
The voliime is the second
in
the University of Toronto’s Comparativ: Law Series and
will
be referred
to in this article
as
the “Toronto study. For
a
broader but less critical
study, see
Le
Rkgime Matrimonial Ldgal
dans
les
Lkgislations
Contem-
poraines,
ed. Rouast
(1957).
3
Cmd.
9678, 1956.
4
For
some penetrating criticisms of the Commission and
its
work, see McGregor,
above,
n.
1.
esp.
chaps.
5-7.
5
See Rahn-Freund,
(1959)
22
M.L.R.
241.
458
SEPT.
1959
A
HOMESTEAD
ACT
FOB
ENGLAND?
459
from Parliament has provoked the writer to attempt in the present
study an alternative approach
to
the treatment of some
of
the
problems hinging
on
the occupation of the matrimonial home which
he feels
will
mirror reality rather better than that of the Commission.
The modem
tendency in many different cultures
ia
increasingly towards
recognising the
joint
nature of the enterprise of marriage.' The
future will
no
doubt bring
to
England too a broader recognition of
('
matrimonial joint stock
"
as the entity with which the law
should concern itself yet since statutory amendments already
introduced have proved to be anything but broad and sweeping,e
the present suggestions do
no
more than add an extremely vital
part of the patchwork of legislation.
Every modern study shows only too clearly that in relation to
this
('
most important tangible substratum
of
the household com-
munity
.
. .
the rule of separation of property is for very good reasons
being emasculated."
lo
The increasing use of the joint tenancy
by married couples," the frequent merger of their assets
in
buying
and furnishing their home, the need
to
provide for the spouses
in
the event of the collapse
of
the marriage and the difEculties of
fair
division
of
the beneficial ownership ''-all these factors indicate the
need for some device
to
safeguard the proprietary and occupational
A
preliminary word of qualification, however.
6
See in particular the Toronto study and the recent article by Kmhn-Freund
(supra,
n.
5).
7
Lord Evershed M.R. in
Siloer
v.
Siloer
[1968]
1
All E.R. at
526.
8
Though community property in
any
shape or form on16 received mbority
support within the Commission: Report
8s.
652-653.
f
seven dissentem
(six
of
whom, significantly enough, were married women) three would have
recognised community limited
to
the matrimonial home and its contents and three
supported
it
as
a
general proposition based on the Scandinavian model
(c/.
Malstrijm,
Matrimonial Property Law in Sweden,
pp.
410
ct
aeq.
of the Toronto
study).
0
The legislation implementing the Report of the Morton Commission
M
very
bulky yet, at the same time, very incomplete:
see
Maintenance Agreements
Act,
1957
(5
&
6
Elk.
2,
c.
35);
Matrimonial Causes (Property and Main-
tenance) Act,
1958 (6
&
7
Eliz.
2,
c.
35);
Maintenance Orders Act,
1958
(6
&
7
Eliz.
2,
c.
39);
Matrimonial Proceedings (Children) Act,
1958 (6
&
7
Elk.
9.
c.
40);
Divorce (Inaenity and Desertion) Act,
1958
(6
&
7
Eliz.
2,
64);
Matrimonial Causes (Decree Absolute) General Order,
1957
;
Matnmontl
Causes Rules,
1957
(No.
619);
Matrimonial Causes (Amendment)
(No.
2)
Rules,
1957
(No.
1177)
;
Matrimonial
Causes
(Maintenance Agreements) Ruler,
1957
(No.
2202).
10
Kahn-Freund,
Matrimonial Property Law in England,
p.
267,
at
p.
901,
of
the Toronto study.
11
For interesting use of the joint tenancy
as
8
means of home prokction,
me
the
New Zealand Joint Family Homes Act,
1960,
as
amended. This
stmtnte,
similar in its operation to the homestead laws considered below, contemplates
the settlement of the famil,y home
on
the husband and wife
as
joint tenants
(with
all
the rights and duties of joint tenants) and subsequent exemption from
the claims of creditors and gift, death and stamp duties. In that the system
merely sets up
optionul
machinery, however, and das not
compel
a
family
to
obtain the security
it
offers,
it
provides
no
greater safeguards m?ainst voluntary
alienation by
one
of the
spouses
than daes the present English
ncheme.
12
The main difficulty being how far
to
compensate one not bavinu the le-1 title
in the home for loss of its
use
:
cf.
the present writer's note in
(1968)
91
M.L.R.
419.
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