POWERS OF COURT TO MAKE ORDERS FOR THE PROTECTION OF A PARTY TO A MARRIAGE OR A CHILD OF THE FAMILY (Hansard, 19 May 1978)

§ Mr. Sims
I beg to move Amendment No. 8, in page 17, line 2, at end insert: '(10) The court in making an order under subsection (2)(a) or (b) above may, if it thinks fit, define the matrimonial home to which the order applies.'. It arises from a discussion we had in Committee when I raised the question of the definition of the matrimonial home. I envisaged, for example, the situation in which an order might be made affecting the matrimonial home where it might not be clear whether it applied to a caravan in the garden of the home.
The Under-Secretary indicated in Committee that she would look at the matter, and she was kind enough to write to me about it pointing out that the term is not new and that hitherto it had 1057 been found unnecessary to include a definition in legislation.
She makes the point in her letter that the disadvantage of a tight definition is that it could limit the court's ability to apply its common sense to the issue before it. Circumstances, she says, could differ widely from case to case, and an interpretation which encompassed all the possibilities would be difficult to devise.
I can see the strength of her argument about the difficulty of what I originally had in mind, which was defining "matrimonial home" in the Bill. But I believe that in her letter she goes some way to strengthening my doubts on the point. She says of the matrimonial home: It may sometimes be difficult to determine where that place is, or even whether it exists at all". She says: I think that in nearly all cases the courts would regard the garden of the house in which the parties had lived together as constituting part of the 'matrimonial home', and would accordingly make an order having the effect of excluding the respondent from both home and garden. I am not clear from that in what way it would be apparent that the court had thought that the matrimonial home included the home and garden. The hon. Lady goes on to suggest: The courts … will use their commonsense. Of course they will, but it is possible that they might miss a point in discussing the case and coming to a conclusion. All sorts of difficulties could arise if the matrimonial home was not clearly defined.
Therefore, in my amendment I suggest that when an order of this sort is made the Bill should ensure that if there is any possibility of doubt the court would have the power when making the order to define what it considers in this specific case to be the matrimonial home. That I think will get over the difficulty, which I accept, of putting a specific definition in the Bill.
Such a provision would give the court the power, which is implied at the moment but will be explicit if the amendment is accepted, to define precisely what the matrimonial home is so that when the order is made—and they are important orders which are extensive in their application—the parties concerned 1058 shall have no doubt about what it means. I hope that the Government will be able to accept the amendment which I believe meets this point.

§ Mr. John
I am afraid that the hon. Gentleman's winning streak has run out in the sense that he has not convinced me to such an extent that I can accept the amendment.
It is right that we should avoid ambiguity in such an order, and it is necessary to specify these matters so that not only the person against whom the order is made but the person in whose favour the order is made is in no doubt as to its scope and ambit. A good way of achieving this end is for the court to prescribe what is a matrimonial home in the circumstances of the case. I believe that it is unnecessary to give the court the power in this case, and that to specify the matter in the Bill may be disadvantageous in comparison with other Bills.
It is unnecessary to give express power because they already have the power without its needing to be stated. This relates to the power of the High Court and the county courts when making orders under the Domestic Violence and Matrimonial Proceedings Act 1976 excluding a person from the matrimonial home. Courts ordinarily specify what they understand the matrimonial home to be. This is regarded by them as the course which should be followed because of the desirability of bringing about some certainty.
Furthermore, I believe that this proposal would have undesirable effects. Although as a concept the matrimonial home is used in the domestic violence legislation and in that relating to matrimonial homes, it is defined in neither piece of legislation. If we give an express power in this Bill, it will throw doubt on the powers of the courts in the other two Acts and we shall have to amend them.
One phrase that disqualifies this amendment is "if it thinks fit", referring to the court. That can be taken as suggesting that the court may not think fit to describe any particular matrimonial home. The phrase is certainly capable of that interpretation.
I do not intend to leave the situation uncovered. If the hon. Gentleman will 1059 withdraw the amendment, I shall undertake to draw attention in the circular that will be issued to the dangers of ambiguity with regard to the matrimonial home and to recommend to all courts that they should specify in their orders what is meant by the matrimonial home in the particular case.
These circulars are very influential in magistrates' courts. I believe that it would be much better to include the information in circulars than to use the provisions of the Bill, because that may weaken other Acts of Parliament bearing on these matters.

§ Mr. Sims
In principle I always prefer Parliament to make clear in legislation what it intends to enact rather than to leave matters to be included in circulars. However, I see the strength of the Minister's argument. I beg to ask leave to withdraw the amendment.