HC Deb 30 June 1981 vol 7 cc774-82
Mr. Rifkind

I beg to move amendment No. 5, in page 5, line 24, leave out 'and',.

Mr. Deputy Speaker (Mr. Bernard Weatherill)

With this, it will be convenient to take Government amendments Nos. 6, 8, 14, 17, 44 and 45.

Mr. Rifkind

The amendment and those grouped with it give effect to a suggestion made by the hon. Member for Glasgow, Garscadden (Mr. Dewar) that an offer of alternative accommodation is an important factor that should be mentioned as specifically worthy of the court's attention. Although it may not arise often, the Government accept that this is a relevant consideration that should be taken into account.

Mr. Milan

We are grateful for these amendments that arise from an Opposition suggestion in Committee. We believe that they improve the Bill.

Amendment agreed to.

Amendment made: No. 6, in page 5, line 31, at end insert

'; and '(e) whether the entitled spouse offers or has offered to make available to the non-entitled spouse any suitable alternative accommodation. '.—[Mr. Rifkind.]

Mr. Dewar

I beg to move amendment No. 30, in page 5, line 31, at end insert— '(e) Whether the applicant spouse has at any time lived in the matrimonial home which is the subject of his or her application.'. This amendment relates to the important matter of the criteria in clause 3(3) which define the test that the courts will have to apply when they decide whether there should be a declarator of occupancy rights and the other possibilities under the clause. There is also reference to the criteria in clause 4. The amendment is designed to write in further criteria. I move it in a probing spirit.

I wish to raise the specific problem of the matrimonial home to which the particular powers in clause 3 are likely to apply. In a simple case, if a matrimonial home is lived in by both spouses at the time they separate and subsequently one spouse attempts to get a declarator of occupancy over the home under clause 3, there can be no argument. There is, however, no time limit on the process. A situation could arise where the matrimonial home may be sold and the entitled spouse may move into a new house.

As a slight variation on that prospect, a situation might arise in which the matrimonial home, at the time of the break-up, was tenanted either in the private sector or as a council house. After the break-up, the entitled spouse—the husband, for the sake of argument—might proceed to buy himself into owner-occupation in a manner of which the Minister would no doubt approve. I understand that some dispute would then arise as to the circumstances in which that home would still be a matrimonial home in terms of this legislation.

The Minister suggested in Committee that the matter might depend on whether the entitled spouse had the care, control or custody of the children on the ground that if the husband, who had brought the new home, was living in it with the children he was, by that definition, living in a family home, even though the non-entitled spouse had never been under the roof. The hon. Gentleman suggested, on the other hand, that if the children were not there and that the custody of the children, as often happens in Scottish courts, had gone to the mother, it might not be the family home.

That seems strange to me and I wonder whether the Minister has given further thought to it since the Committee stage. The amendment was tabled to ventilate this matter and to give him an opportunity to comment further. The amendment adds a new criterion to be considered by the courts—whether the applicant spouse has at any time lived in the matrimonial home which is the subject of the application.

Apart from the criteria of conduct, respective needs and financial resources, it might be relevant—I underline the word "might" and put it no higher—for the courts to consider whether the matrimonial home had been used by the spouses in the normally accepted sense. Some years might elapse before the issue arose and it would have to be considered whether this home had been acquired—perhaps it was the first home to be acquired by the entitled spouse for owner—occupation-or whether the home had appeared at a later date, long after the break-up of the spouses.

No doubt the Minister will be aware of that. I do not mean to be critical but I was a little dissatisfied with the grey area that emerged even in the light of his comments in Committee. Has the Minister had any further thoughts?

Mr. Rifkind

Clause 3(3) states that if the court decides to grant an occupancy right it must be satisfied that two criteria have been fulfilled. The first is that the house is a matrimonial home. Secondly, the court is enjoined to take into account various considerations in deciding whether to grant an occupancy right.

In considering whether a house is a matrimonial home one must consider the definition of "matrimonial home", as that is what the court would do. The hon. Gentleman will see that a matrimonial home is defined in the Bill as a "family residence". It must be decided in each case whether it would be appropriate to conclude whether a house is or is not a family home. In deciding that, the court might wish to take into account whether the parties have or have not lived in that house before. In some cases one of the spouses may never have lived in that house, and the court may conclude that as a consequence the house is not a matrimonial home. Therefore, it would not be necessary for the court to consider the second part of the requirements to be fulfilled.

If the court decides that a house is a family residence—that may be decided in circumstances even where one or both of the parties has never lived in the house—only then does the court address itself to the other requirements.

I said that there was a possibility of a house being considered a matrimonial home when neither of the parties had lived in it. I give an example because it is not impossible, although it is a highly improbable scenario. Nowadays, many men work overseas either in the diplomatic service or for companies, and their wives and families join them. It is not unusual for them to buy a house before going overseas or while they are overseas, to be used as a home if and when they return on leave or permanently. On some occasions, neither spouse will have lived in the house, and sometimes only one of the spouses will have lived in it. On any commonsense interpretation, that would be considered a matrimonial home. Therefore, I do not want to suggest to the courts or to the House that that is a relevant consideration in deciding occupancy rights.

The legitimate concern expressed by the hon. Gentleman is a concern that will be determined by the courts in deciding the first requirement of a matrimonial home. If the court concludes that it is a matrimonial home, it will then consider the other circumstances. On that basis, I hope that the hon. Gentleman will not wish to press his amendment.

Mr. Dewar

It will be a relief to the House to know that I have no intention of pressing my amendment. I am reasonably satisfied with what the Minister said. In view of my remarks about his sceptical attitude to the courts being able to exercise a wise discretion, it would be unfair for me to suggest that they will not do so. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 pm
Mr. Rifkind

I beg to move amendment No. 7, in page 5, line 43, at end insert— '(4A) The court shall not make an order under subsection (3) or (4) above if it appears that the effect of the order would be to exclude the non-applicant spouse from the matrimonial home. '.

Mr. Deputy Speaker

With this we may discuss the following amendments: No. 31, in clause 4, page 6, line 39, after 'court', insert '(a)'.

No. 32, in clause 4, page 6, line 44, at end insert— 'or (b) it is reasonable in all the circumstances including the suitability of the accommodation that the applicant spouse and non-applicant spouse should both live in the matrimonial home. '.

Mr. Rifkind

I shall not comment on the Opposition amendments until the proposals have been explained.

Government Amendment No. 7 fulfils an undertaking which I gave in Committee to clarify the extent to which it might be possible to use clause 3 to produce what amounts to an exclusion order in relation to the occupancy rights of the parties to the marriage.

Various suggestions were made in Committee about whether that was a desirable use of clause 3. I said that the Government believed that if it was thought appropriate to use such an unprecedented power to exclude the owner from a property in which he had previously lived and to which he retained a title it was essential that it be used only in special circumstances where, for example, there was a threat to the physical or mental health of the other spouse and where the complicated procedures in the clause applied. We believe that if that does not apply it is not right to use clause 3 in a way which would lead to the exclusion of a spouse who has entitlement to the property.

We are dealing with delicate circumstances when the title to a property will no longer, in certain circumstances, give an occupancy right to that property. Where that is provided, it should be done explicitly and with proper safeguards. We tabled Government amendment No. 7 on that basis. Its effect is to ensure that the objective that I described in Committee is properly fulfilled.

Mr. Millan

Taken by itself, we oppose the Government amendment. Amendments Nos. 37 and 38 mysteriously have not been selected, although they are an integral part of amendments Nos. 31 and 32. If amendments Nos. 31 and 32 are accepted, amendments Nos. 37 and 38 should follow.

The Minister's remarks follow comments that I made on Second Reading. I said that there seemed to be a serious gap in the Bill. I said that clause 3 provided for the regulation of occupancy rights and that clause 4 was separate, dealing with exclusion orders. I was interrupted by the Solicitor-General for Scotland, who said that clause 3 provided for exclusion.

If clause 3 is intended to deal with exclusion, it should be stated on the face of the clause. A clause should not appear to do one thing when it does something else. I agree with the Minister to that extent.

If clause 3 does not include the right of exclusion from the home, clause 4 is defective. Exclusion orders under clause 4 apply only where the particular circumstances of clause 4(2) apply. Those circumstances deal with an unreasonable or, more particularly, a violent spouse. It is common ground that in such circumstances the other spouse should have the opportunity to apply for an exclusion order.

The trouble is that in a vast variety of cases, although it will not necessarily be true that one spouse has been violent or even behaved unreasonably towards the other spouse, it will no longer be sensible, right or reasonable that the two spouses should share the matrimonial home. In many of those circumstances an application under clause 3 will be completely inappropriate, because the nature of the home, the extent of the accommodation, will not be such that clause 3 can be sensibly applied to declare the respective rights of one spouse or another.

That is all right when one is dealing with a large house where it is possible for spouses to live reasonably happily because they can live separate lives within the same accommodation. However, in the vast majority of cases it will not be possible for the court to lay down the respective occupancy rights of the wife and husband.

In those circumstances, what is needed is an exclusion order. Unfortunately, the Bill ties an exclusion order to the question of violent conduct, or something approaching it. In clause 15—this is where my amendments Nos. 37 and 38 would apply—powers of arrest are introduced because one is dealing there with a violent husband or wife. That is perfectly sensible and appropriate when one is dealing with an exclusion order relating to the violent conduct of the husband towards the wife or the wife towards the husband.

I said on Second Reading that there was a huge gap in the Bill and that there would be many cases in which neither clause 3 nor clause 4 would be particularly appropriate. The Government, in amendment No. 7, are making clause 3 nugatory in the vast majority of cases. If that amendment had been tabled by an opponent of the Bill, I would have said that it was a wrecking amendment. Amendment No. 7, taken by itself, is a wrecking amendment. That is what it will amount to. My hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), who has been in touch with women's organisations, takes exactly the same view.

What is required is an amendment to clause 3 but also an amendment to clause 7 to provide for exclusion—here I differ in principle with the Minister—in circumstances where violence or apprehended violent conduct is not involved but that is simply the only satisfactory way to deal with a situation where it is no longer reasonable or sensible that the husband and wife should live together in the same matrimonial home.

That is what amendment No. 32 does. It says that it is unreasonable in all circumstances, including the suitability of the accommodation—a point that I have already made—that the applicant spouse and non-applicant spouse should both live in the matrimonial home.

Amendment No. 31 would give two sets of circumstances for exclusion orders under clause 4, by inserting the letter (a) in line 39 on page 6, which deals with the existing circumstances that are provided in the Bill at present.

Amendment No. 32, by providing a new paragraph (b), provides an opportunity for an exclusion order, which I believe in many circumstances is the only satisfactory solution to the problem of the matrimonial home. It provides for an exclusion order where the circumstances are not circumstances of violence but simply a question whether it is reasonable for the spouses to live together. That will rest to a considerable extent not only on the relationship between the spouses but also on the suitability of the accommodation.

I wish to make it clear that in making that division in clause 4(2) both paragraphs, including the new paragraph provided by amendment No. 32, will be subject to all the arguments and factors to be taken into account that are provided for in clause 4(3). There would be no question of the court not having to look at all the circumstances of the case. It could, however, look at the circumstances in the context of exclusion even where there was non-violent conduct—something that it could not do if we accept amendment No. 7.

Amendments Nos. 37 and 38 disapply the powers of arrest to the new provision. Obviously, if the court took the view that a husband or wife should be excluded because it was unreasonable to expect them to live together but there was no question of violent conduct, we would not want to introduce the powers of arrest and the other provisions in clause 15. They are valid and reasonable only where there is violence. Otherwise, normal civil remedies rather than criminal remedies should apply. When I say that amendments Nos. 37 and 38 are integral to the argument, I hope that the Minister will accept that.

If we divide clause 4 to provide for the two sets of circumstances, it is necessary to make consequential amendments later in the Bill to make it clear that a spouse who is not violent will not have the powers of arrest applied to him. As I said on Second Reading, if the Bill is not amended as I suggest, and especially if it is amended by amendment No. 7, either there will be a variety of cases where the Bill will not bite at all, and considerable hardship and injustice will apply, or another injustice will arise by application being made under clause 4, even in circumstances where the husband is not a violent man and has not behaved in a violent way but where the court—because it believes the position between husband and wife is intolerable—will grant orders under clause 4 which, in terms of exclusion, will give the right answer but will cause a shadow to fall over the guilty party by finding him—if it is the husband, as it usually is—guilty of violent or unreasonable conduct, perhaps in circumstances where there is no unreasonable conduct but the husband and wife simply find themselves living in an intolerable position.

The stigma that would attach to the unsuccessful spouse under clause 4 would be unjustified in those circumstances. If we allow the Bill to pass amended in the way that the Minister wishes, I believe that the court will stretch clause 4 in that way. Not to do so would leave an intolerable gap in the Bill that would allow unsatisfactory circumstances to continue, in a way that was not intended when the Bill was introduced.

I say strongly that we would not be against amendment No. 7 if it were accompanied by amendments Nos. 31 and 32. If all three amendments and subsequent amendments were written into the Bill, we would have a complete story. We should be doing what was intended when the Bill was originally introduced. Amendment No. 7 without amendment Nos. 31 and 32 is almost a wrecking amendment. It will reduce the effectiveness of the Bill considerably.

9.30 pm
Mr. Rifkind

I listened carefully to the right hon. Member for Glasgow, Craigton (Mr. Milian). I acknowledge the importance of the part of the clause that we are discussing.

The Government consider that the Bill's purpose is to provide occupancy rights for both spouses to a marriage. That is not to say that in the majority of cases one spouse, and one spouse only, must be given the right to live in the house when a marriage breaks up and that the other spouse must be deprived of that right. The circumstances in which that rather extreme remedy should be imposed upon the spouses to a marriage should be clear and explicit. Those are circumstances which would justify in any normal sense of the phrase the rather extreme measures which the court would be imposing upon the marriage.

I concede that the amendment is introduced with the best of intentions. However, in virtually every case in which a marriage had broken up it would result in the court being asked not merely to pronounce on the occupancy rights of the spouses but, in effect, to decide which of the two spouses was to be excluded from the matrimonial home in favour of the other spouse. If both spouses had a similar legal title to the property or had no title to it, that might be a not unfair proposition to advance. However, we are concerned with the circumstance in which one spouse, who is the owner of the property and who until the enactment of the Bill has an unqualified right to possession of the property, is to be deprived of his right.

The Law Commission and the Government feel that we are entitled to make what is by any stretch of the imagination a fairly drastic change in our law only when special circumstances have arisen which make it impossible for the parties to be expected to live together. That situation will arise not only when physical violence is involved, to which most of the right hon. Gentleman's remarks were directed. The Law Commission acknowledges and the Bill recognises that these circumstances may arise in the absence of physical attacks or threatened physical attacks on the one spouse by the other spouse but when there is a danger to the mental health of one of the spouses. That is why the Bill is so phrased. However, fairly severe conditions have to be met. When the physical or mental health of the spouse is in danger or is threatened, an exclusion order may be granted.

We must never lose sight of the effect of that order, which is to deprive the owner of property of his right to live in that property. This is an innovation in our law. It is one that will not be available except in the circumstances laid down in the Bill. Implementation may take place only if there is actual or threatened violence, physical or mental, to the health of the other spouse.

The amendment would so broaden that condition as to suggest to the courts that any time there was a matrimonial break-up and the wife or the husband was able to say "I do not want to live with my spouse, we cannot live together", they would be able to exercise judgment on who, on balance, should be given the right to live in the house. If that happened, no weight could be given to the fact that one of the spouses was the owner of the house and that the other spouse had no legal right to it. That would not be a fair approach.

If a spouse is to be excluded from the right of occupancy despite his or her legal title, that should happen only when there is actual or threatened injury to the physical or mental health of the other spouse. It is a serious requirement, and it is right that it should be. Having read the Law Commission's views on the matter, I very much doubt whether it would have been prepared to contemplate an exclusion order where it was agreed that there was not the slightest evidence of injury to the physical or mental health of the other spouse, so that the owner of the house should be totally excluded, or capable of being totally excluded, from his own property by the courts.

That was not the Law Commission's view. It was not the basis of representations that were received, certainly not until a late stage in the passage of the Bill—and only then from certain organisations. Although I freely acknowledge the right hon. Gentleman's motivation, I believe that to do what he wants would mean a far more serious invasion of the rights of owners of property than could be justified in the circumstances that he wishes to deal with.

I hope that the right hon. Gentleman will believe that we have given genuine consideration to the matter, because we acknowledge the difficulties that he has referred to. I do not believe that Government amendment No. 7 by itself would be a wrecking amendment, because the whole point of the clause is that in circumstances in which an exclusion order is not appropriate the courts should still have the opportunity to indicate the occupancy rights of the spouses. It is a clarifying amendment, consistent with the whole basis of the clause, and it is on that basis that: I reluctantly do not feel able to accept what the right hon. Gentleman proposes.

The right hon. Gentleman's amendment goes immeasurably beyond what the Law Commission contemplated when the proposals were first put forward. It is a drastic change that the Government cannot accept.

Mr. Milian

Although the Law Commission produced a long and careful report, the report contained a number of items that I did not find plausible or convincing. Nor did the Government, because they did not follow the Law Commission's recommendation, even in the first draft of the Bill. In any case, the Bill has been considerably altered since then, so it is by no means exactly the same Bill as the Law Commission had in mind.

I accept that an exclusion order is a serious matter, but I do not believe that the Minister, who in these matters seems to be much more concerned with the property rights of the respective spouses than the way in which they are living together, has taken on board the practical consequences that I have already outlined.

First, when one reaches the stage of going to court, there has been a serious breakdown in relationships. In most such cases one spouse has already left the house. We are dealing with circumstances in which, despite the serious breakdown of relationships, the spouses are either actually or prospectively each trying to live in the matrimonial home in circumstances in which, as I say in my amendment, it would be unreasonable—particularly in view of the extent of the accommodation available—that they should live together.

In those circumstances, whether we like it or not despite property rights and the rest, the court should be able to make a judgment, one that could involve exclusion as well as restricting the occupancy rights of one spouse as against those of the other. Unless we do that—and the Minister has not answered this point—there is a huge gap in the Bill, because clause 3 does not apply in the normal circumstances of a normal matrimonial home where there is little accommodation. It certainly does not apply where there are children as well as the husband and wife living in a small matrimonial home. It becomes intolerable for the spouses to live together, not necessarily because one spouse is behaving unreasonably or is violent or potentially violent towards the other.

If the Bill asserts the right of one spouse, it inevitably denies or restricts the right of the other. If we are to do this at all, we cannot have a Bill of this nature, which will in any case apply only where there has been a serious breakdown and where the position has not been resolved, perhaps by one spouse leaving the house, leaving the other in reasonably secure enjoyment of the home.

There is no disagreement between the two sides of the House about the Bill's general intention, but to do what the Government now recommend would leave a huge gap, which would be indefensible. I am afraid that the Bill, which will never, even in the best interpretations, solve more than a small proportion of the problems that arise in the breakdown of marriage, may be rendered almost completely nugatory in a variety of cases in which its provisions should bite.

I understand that the Minister has considered the matter carefully. He is not turning down the amendments off the top of his head. I understand that there is a genuine difference of view between us on those matters. I do not believe that anything which I say now will persuade the Minister. In those circumstances, I regretfully ask my hon. Friends to vote against amendment No. 7. If it were permitted by the Chair, I would prefer it if amendment No. 31 were to be the amendment for Division. However, amendment No. 7 taken by itself, unless it is supplemented and bolstered by amendments Nos. 31 and 32, will wreck the Bill. If it is permissible, therefore, I shall allow amendment No. 7 to go through if we can divide on our our own amendment No. 31.

Mr. Deputy Speaker

That is in order.

Amendments agreed to.

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