OCCUPANCY RIGHTS OF COHABITING COUPLES (Hansard, 30 June 1981)

§ Mr. Dennis Canavan (West Stirlingshire)
I beg to move amendment No. 23, in page 20, line 8, leave out 'no such period exceeding 6 months' and insert 'and the duration of such period may be unlimited or limited, at the discretion of the court'. The purpose of the amendment is to give more discretionary power to the courts for the period for which they may grant occupancy rights to the applicant, where he or she is not the spouse of the other person but has been living with him or her—in other words, the case of cohabitees. It is only fair to distinguish between couples cohabiting on a casual or temporary basis and couples who are cohabiting on a permanent basis but who, for some reason or other, have not formalised the relationship by marriage. Some people may have been living with each other for much longer than some married couples. It is unfair that the applicant cohabitee should be treated in an inferior manner compared with the applicant spouse.
In some cases the tenancy may have been granted to one of the cohabitees because of the circumstances of the applicant cohabitee For example, a tenancy may have been granted to the male cohabitee because the woman with whom he was living had children either from a previous relationship or from his relationship with her. It would be unfair in such circumstances for the woman and children to be in danger either of being evicted or of their security within the matrimonial home being inferior to the security of a married woman.
Some cases have been outlined to me. A woman in a woman's aid refuge had lived with a man for 17 years and had had two children, now aged 15 and 16. If the courts were not allowed discretion to extend her occupancy rights beyond three or six months—the Bill stipulates an initial period of three months with possible follow-on periods of a maximum of six months each—the woman and her children would, every three or six months, be faced with possible eviction from the home in which they had lived for 17 years.
To give some idea of the scale on which the difficulty may exist, I understand that in Dundee from January 1980 to April 1981 141 women sought refuge. Of those, 31 had been cohabiting with violent men, but were not married to them. On average, the women have two children each. Concern has been expressed about the unfairness of the women's position. Those figures relate only to the Dundee area. Imagine them multiplied throughout Scotland. We would be talking about a significant number of women and an even more significant number of children. It is incumbent upon the Minister to think about that problem when he deals with the amendment.
There is a precedent for the State's treating men and women who are cohabiting as though they were married, even when the relationship has not been formalised. I refer to the social security regulations. The supplementary benefit leaflet No. 7 called "Living together as husband and wife" states: When an unmarried couple live together as husband and wife, they are treated as husband and wife when a claim is made for supplementary benefit … It is usually clear whether two people who live in the same household are living together as husband and wife. 797 The practical difficulties do not seem to be insurmountable. If a social security officer or supplementary benefit officer is given discretion to decide whether a man and woman are living together as husband and wife, why cannot the courts be given a similar discretion in respect of the occupancy rights of a cohabiting couple?
When I raised this issue in Committee I detected a reasonable degree of sympathy from the Minister. He said that the Government would consider the Opposition's argument. I am disappointed that he does not have a similar amendment on the Order Paper to extend the discretion of the courts rather than laying down rigid statutory limits.
My suggestion is not exactly the same as the one that I made in Committee. I shall be prepared to compromise and to stand by the initial period being not in excess of three months as provided in the Bill. I am suggesting that thereafter any extension should be either limited or unlimited. If there is a limitation, it should be within the discretion of the courts. If the Minister were to accept this modest amendment it would be of great benefit to many people, including children who may be threatened with a great deal of insecurity when it comes to establishing their rights of occupancy in the matrimonial home.

§ Mr. Rifkind
The hon. Member for West Stirlingshire (Mr. Canavan) has argued much as he did in Committee, that the position of a cohabiting partner may be such for it not to be unreasonable for occupancy rights in the matrimonial home to be extended indefinitely, especially when there are children of the relationship. We have considered the arguments that the hon. Gentleman advanced. They would have great substance if we had accepted the original Law Commission recommendation, which indicated that a cohabiting partner should have an extremely limited occupancy right and that when a fixed period had elapsed there would be no question but that that person would have to give up the right of occupancy and the house would revert to the other partner.
We accept the hon. Gentleman's reasoning, which leads us to think that that recommendation would be unfair, especially when there are children of the relationship. We replaced the Law Commission's recommendation with a much more flexible arrangement, which enables the court to extend the initial occupancy right to successive periods of six months without limit. If there were circumstances of the sort that the hon. Gentleman has postulated it might be that the occupancy right should be extended again and again, perhaps for several years for as long as the circumstances were relevant.
If parties have decided not to get married they have the right to exercise that free choice. The Bill is concerned primarily with the circumstances that arise when two spouses find that the legal arrangement into which they entered has broken apart and it is necessay to apportion rights between the spouses. It is broadly accepted by all concerned that it would not be appropriate to have exactly the same rights and obligations for cohabiting partners as for those who are spouses. We have gone a considerable way in the direction that the hon. Gentleman seeks, and I hope that that will be acceptable to him.

§ Mr. Canavan
The amendment does not suggest that there should be absolute parity of treatment between cohabiting partners and married partners. That was 798 roughly what I suggested in Committee, but I am going some way to meeting the Minister. It is most unsatisfactory to expect the applicant cohabitee to go to the court every six months to try to obtain an extension of the occupancy right. That discontinuity must be intolerable. Even if in only a minority of cases, surely the right should be extended indefinitely.

§ Mr. Rifkind
No. The whole basis on which certain rights have been given to cohabiting partners is that there may be a need to have a reasonable period in which to find alternative accomodation. if a spouse is having difficulty in finding it, it is right that he or she should return to the court and say "I still have been unable to find alternative accommodation"—after six months or nine months—"and I therefore wish the occupancy right to continue". The court has complete discretion to grant that right.
We are not dealing with two legally married people who have ceased living together and for whom a permanent new arrangement is considered appropriate. If persons have in mind a permanent relationship, they will enter a state of marriage. That is how society deals with that sort of problem. If they choose not to do so, the problem is different. We are dealing with the reasonable requirements of a cohabiting partner, particularly where there are children, to ensure that accommodation is available to him or her until alternative accommodation is provided. The Bill in its present form fully meets that requirement.

§ Mr. Rifkind
I beg to move amendment No 42, in page 20, line 15, leave out from beginning to "both" in line 16, and insert— 'While an order granting an application under subsection (1) above or an extension of such an order is in force, or where.'. This amendment also deals with cohabiting partners. I am sure that it will be welcomed by the hon. Member for West Stirlingshire (Mr. Canavan) as well as by other hon. Members.
Concern was expressed in Committee about what would happen if a cohabiting partner had been given an occupancy right for three months or six months but during that period the other partner sought to dispose of the house to a third party. I was asked whether that would in effect frustrate the occupancy right. Clearly there would be a great temptation to defeat the occupancy right in that way, if such a power were available.
The Bill already contains a limited power to seek an interdict in certain circumstances, but on reflection the Government think it appropriate to make the position much clearer and to provide that where an occupancy right has been granted to a cohabiting partner clause 6, which deals with disposals to third parties, should apply in much the same way as it would apply to an entitled spouse.

§ Mr. Dewar
I welcome the amendment, which meets a point that I, among others, raised in Committee. It is important that a cohabiting partner who has obtained an occupancy right under the provisions of clause 18 should have the protection that is now accorded to him or her. I am glad that the Minister has reconsidered his suggestion that there were other remedies, such as interdicts. It seems to me that they were not adequate.
Although it is a difficult balance to strike, and although I would not have gone as far as my hon. Friend the Member for West Stirlingshire (Mr. Canavan), I believe that the three-month period followed by six months as a 799 maximum before one must return to the courts is inelastic and will give an air of impermanency; it will invite the courts to look upon any such occupancy right as impermanent. In the changing social climate, in which cohabitation over many years is becoming more common, we may want in future to take a more accommodating attitude.
10.45 pm
The amendment would presumably preclude any dealing in the property during the period in which an occupancy right had been allowed to the cohabiting person. What worries me is the situation in which there is an occupancy right of six months and that is entered into on the basis that vacant possession will be given at the end of that six months' period, when there is the possibility of an extension for a further period of six months and further extensions beyond that.
I hope that the Minister will feel able to comment on this matter. I hope that it will not be possible for the owner of the property to defeat a claim for an extension of occupancy rights by his co-habitee on the basis that he had entered into missives which would come into effect or could be purified only by the eviction of the co-habitee. No doubt the court might disregard that on the balance of convenience. We return to the recurring argument of the evening whether one can trust the courts to be reasonable, in which I, rather surprisingly, ended up as the defender of court discretion. It might be useful if the Minister could confirm that the existence of missives should not be seen as closing the possibility of an extension of the six months' period. I generally welcome the amendment.

§ Mr. Rifkind
It is for the court to consider, when a request for continuation of occupancy rights has been put 800 before it, the relative hardship which would apply to either of the partners in the event of such an order being granted. I have no doubt that the wish of one partner to sell the house would be a relevant consideration, but not necessarily an overriding one, depending on the circumstances of the case.

§ Mr. Rifkind
I beg to move amendment No. 43, in page 20, line 30, at end insert— 'in section 6, subsections (1) to (3); in section 7, subsections (1) to (4), but only where both partners of a cohabiting couple are entitled, or permitted by a third party, to occupy the house where they are cohabiting; sections 8 and 9;'. This amendment is consequential on the additional protection being given to a cohabiting partner during the period of an order giving him or her occupancy rights. I commend it to the House.