HC Deb 30 June 1981 vol 7 cc758-74
Mr. Dewar

I beg to move amendment No. 24, in page 2, line 10, at end insert 'but if such an individual does not waive his or her right, the court may, on the application of either spouse, make an order declaring the spouse so entitled or permitted to occupy a matrimonial home to be an entitled spouse for the purposes of this Act, and such order will have effect until such time as it terminates in terms of section 5 of this Act, or the court recalls or varies same, on the application of either spouse or the individual having such an interest'. This debate will be comparatively short but complicated. It is an echo of far-off days in Committee. The amendment deals with clause 1(2) and with joint owners or joint lessees of a property, or the "two siblings case". I shall describe what I mean. Let us suppose that a property is owned or leased by two brothers and that one of them marries and brings his wife to live in the house. Let us assume that some years later the marriage gets into trouble and breaks up. The wife of one of the owners or lessees might decide to attempt to occupy the matrimonial home and take an action to establish her occupancy rights under this measure. The wife would not be able to pursue that claim unless the brother-in-law—the other owner or tenant—had waived his occupation rights in favour of her husband. That is a complicated situation but it is important.

We argued in Committee about the balance of justice when clearly someone must suffer from an unusual but possible situation. The Under-Secretary took the view that we could not do anything to prejudice the position of the co-owner or co-tenant. He said that to do so would be an attack on property rights. Although he had a certain amount of sympathy with the wife who wished to effect an occupancy right, he believed that her need should give way to the protection of the brother-in-law in the scene which I have just outlined.

I am not satisfied with that. At least there should be a measure of discretion. I said in Committee that occupancy rights might be enforced if the co-tenant or owner was not resident in the home which was the subject of dispute. I can see that there are substantial difficulties in that.

I have come to the conclusion that we should write in a discretion for the court. On the application of one of the parties to the court, it should be able to consider whether it is just and equitable to allow a declarator that the husband is an entitled spouse for the purposes of the Act. Once that was done, the normal tests as to whether an occupancy right should be enforced by the courts would flow from that initial decision. It is an attempt to put in an element of flexibility to allow application to the court to have one of those co-owners or co-tenants declared to be an entitled spouse. That would then bring to life, if I may put it that way, the normal occupancy rights which would be enforced if the courts thought it right, having regard to the criteria for the normal case, which are stated in the later parts of the Bill.

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On the whole, it is better to have an element of flexibility to take care of the hard case that may arise in which someone was defeated from enforcing occupancy rights in a house which that person had occupied as a matrimonial home for many years, merely because there was a co-owner who might live at the other end of the country and had no immediate prospect of wanting to establish occupancy rights but whose failure to waive those rights would have dealt a fatal blow to the possibilities that would normally lie to that spouse.

This is perhaps an obscure corner of the Bill, but it is not unimportant. I hope that I have made clear to the House what lies behind the amendment. I am sure that the Minister will have given the matter further thought during the short period that has elapsed since the Committee stage ended. I hope to have a more sympathetic response to what is a genuine effort to meet the difficulty.

Mr. Robert Hughes (Aberdeen, North)

I confess that I am thoroughly confuse by entitled spouses, non-entitled spouses, third parties, occupancy rights, and so on. I admit that I am delighted not to have been a member of the Committee. I am not even sure that I understand my hon. Friend's amendment, although I understand the point that he is making.

All sorts of occasions arise regarding the occupancy of the matrimonial home during the break-up of a marriage which cause great distress to the individuals. A case was brought to my attention on Saturday morning, and I hope that the Minister will tell me that it is covered by this part of clause 1. It concerns a woman who probably will not be protected by the Bill. The matter was brought to my attention because other families might find themselves in the same position.

Some years ago the lady's marriage broke up. The husband left the matrimonial home but, largely as a result of the stress of the break-up of the marriage and associated problems, the wife—I suppose that I should call her the spouse—had to spend some time in in-patient care for a mental illness. While she was in hospital the husband transferred the ownership of the matrimonial home, together with other properties which do not arise under the Bill, into the name of what was described to me as his mistress. When the lady finally came out of hospital and went to establish herself in what had been the matrimonial home, the new owner of the property—that is the only way that I can describe her—proceeded to take court action to evict this woman from occupancy of what had been her home.

The problem is even more compounded for my constituent. She maintains that the matrimonial home, together with other properties, had been purchased largely because she had contributed to their purchase from a legacy that she had inherited from her mother.

Time does not permit me to go into all the ramifications of the case. Suffice to say that my constituent has no home to go to, feels that she has no redress in the courts, and feels bitter about it. She is worried that, property laws being what they are, this process could be repeated in one form or another when a marriage breaks up. It is a sad case. I had to tell her that, as the law stood, she should have raised an action in court in regard to having some part of the handed-over property returned to her because she had a financial interest in it.

Why the matter was not pursued in that way, and why legal redress was not sought in various forms, is currently being investigated by the Law Society. However, it is clear that the more one becomes involved in difficulties following a matrimonial break-up, the more the law is obscure and the more the individual rights of the spouse seem to be taken away.

That was never the intention of those of us who over the years played some part in liberalising the divorce laws. It was never intended that one spouse should criminally bypass his responsibilities to a mentally ill wife after the marriage had broken up. Nevertheless, it does not excuse what happened.

The question that I put to the Minister is whether, as the amendment stands—because, clearly, my constituent did not waive her right to the occupancy of the matrimonial home—it would be possible for her to take action in relation to the matrimonial home, especially since it had been passed to a third party, thereby giving some sort of right of occupancy, or at least right to evict, under the housing legislation. I hope that I have made the case sufficiently clear—I hope that it is a little more clear to the Minister than the Bill is to me—for him to give me some helpful advice.

Mr. Rifkind

The hon. Member for Aberdeen, North (Mr. Hughes) has given a distressing example of the problems that can arise under the existing law.

Once the Bill is enacted, if a husband who is the sole owner of a property wishes to sell that house to a third party, the mere sale of that house to the third party will not prevent his spouse from continuing to have an occupancy right in that house unless her consent has been obtained to the sale of the house or she has renounced her occupancy rights under the Bill. The only circumstance where that would not apply in future would be where the husband had fraudulently concealed the existence of a wife. The position would be difficult in that the wife's rights would have to be balanced against those of an innocent third party who, through no fault of his own, had purchased a house, and where clearly it would be considered unacceptable that that innocent third party should be deprived of occupancy rights simply because of the husband's fraud.

In those circumstances, the husband would lay himself open to possible criminal prosecution. The wife would have a civil remedy against her husband if he still retained the assets from the sale of the house. Therefore, in many of these cases there would still be a remedy. In the general circumstances which the hon. Gentleman drew to my attention there would be a protection which does not exist at present. That may not help the hon. Gentleman's constituent, because it will apply only once the Bill is enacted, but the circumstance will be substantially better from the spouse's point of view than is the case at present.

I come to the amendment. The hon. Member for Glasgow, Garscadden (Mr. Dewar) will agree that one of the fundamental principles of the Law Commission's recommendations was that it should do nothing that would prejudice the legitimate rights of the third party. The whole question of giving a non-entitled spouse certain occupancy rights as against the spouse could be justified because there was a legal relationship between the parties and because, in the circumstances outlined, the normal overriding interest of the spouse as the owner of the property should be subordinated to the interests of the wife, the non-entitled spouse, in the circumstances laid down in the Bill.

The amendment is not acceptable because it breaches what I believe, and what most people accept, to be a basic requirement—notwithstanding the general changes envisaged by the Bill. The amendment would allow, in certain circumstances, a court to require an innocent third party to continue in residence with a party with whom he had had no legal relationship prior to the court's order and to share the occupation of a house in circumstances where that might be total anathema to him.

I appreciate that the hon. Gentleman said that that was not the circumstance in which he would wish to see the power exercised. If he re-reads his amendment, he will see that it is by no means exclusive in that sense—nor can it be, because it is impossible to draft it in a way that fully meets all circumstances. I do not blame the hon. Gentleman for that. We must accept that the consequences of his amendment, or any amendment in this sphere, would make it a matter of the court's own discretion, when Parliament had clearly been prepared to envisage circumstances in which a perfectly innocent third party, not involved in a matrimonial dispute, who had acquired joint ownership or joint lease of a property with one party, was required to share it with a separate individual, even though that might be unacceptable to him.

Given that the third party might be related to one of the two spouses—a brother or a sister—and was then forced into joint occupancy, that might be even more difficult and more unacceptable because of the emotional reasons that led to the break-up of the marriage. That would not be a sound basis on which to proceed.

I accept that declining the option suggested by the hon. Gentleman may lead to difficulties in one or two cases—I am sure it would be only a few cases. If we could legislate for individual cases, we might have been only too happy to respond, but as we must legislate for all or for none it would not be right to prejudice the interests of a third party. For that reason, I hope that the hon. Gentleman will forgive me for not being able to accept his amendment.

Mr. Dewar

The denouement does not come as a complete surprise, although it comes as something of a sadness. The Minister has a cynical turn of mind. By implication, he was ungracious about the way in which the courts would exercise the discretion that the amendment attempts to give them. Of course, he may be right if the courts go daft and use their discretion in such a way as to ensure that a co-owner, perhaps a brother of the husband who has left the matrimonial home, then finds himself imprisoned in one small house with his sister-in-law, with all the overtones of family feud. That would be the sort of circumstance in which the discretion would be used.

It would be sad, but it would be an argument for not giving the courts any discretion in any circumstances, because we would be jumping to the conclusion that the courts would always abuse the discretion and reach a wrong-headed conclusion. It is sad that there might now properly have been an exercise of discretion by the courts. However, the case would never reach the court: it would be impossible to invite the court to exercise a discretion because such a discretion would not exist because of the failure to accept the amendment.

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I wish to cite an example. The co-owners of a house may be two brothers. One brother lives in the South of England and maintains a financial interest in the property—perhaps a capital investment, because most people think that bricks and mortar is an appreciable asset. The house is occupied by one brother and his wife. They may have lived there for 10 or 15 years, or even longer. The marriage breaks up. Because the brother in England has not waived his occupancy rights—no one is asking him to waive his ownership rights—the wife's occupancy rights, which might have been overwhelming had the house been owned solely by her husband, are utterly defeated. It was to meet that circumstance—which might not be common, but could arise—that this little amendment was introduced.

I believe that the balance of social justice is giving discretion to the courts. Perhaps I am prejudiced as someone who has earned his living by the law. By and large, courts are sensible, and by and large that is why we trust them to decide such matters as divorce and the custody of children. I am sorry that the Minister has shown such a cynical approach to the outcome of allowing that discretion to exist. I believe that he is wrong, but as he has hardened his heart I shall not detain the House. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Dewar

I beg to move amendment No. 27, in page 2, line 25, at end add— '(7) The court may set aside any renunciation made under section 5 above on the application of the non-entitled spouse if it is satisfied that there has been a substantial change in circumstances since the said renunciation was signed which might prejudice the said non-entitled spouse, and it seems in all the circumstances just and reasonable so to do.'. The amendment was a late addition to the list of selection. I wish to take this opportunity to thank Mr. Speaker for showing flexibility in this matter. The amendment will prove helpful to the House because it allows it to debate an issue of real importance—one of the most important issues that has arisen in the legislation.

Amendment No. 27 deals with the vexed question of a waiver by a spouse of her occupancy rights. I do not wish to detain the House for too long. Clause 1 provides a statutory right to occupancy of the matrimonial home. However, subsection (5) provides that a non-entitled spouse, usually the wife, may renounce in writing his or her occupancy rights in a matrimonial home or property. That is an extremely controversial matter. Widespread fears were canvassed in Committee that the provision would be open to abuse. The women's organisations representing women's interests, which are involved in the arguments about rights in a matrimonial break-up, fear that waivers might be signed under duress and that women might be frightened into signing. That is a real and genuine worry.

I said in Committee that even more important is the position in which a wife may sign a waiver at the beginning of a marriage under the impression that it is a matter of little significance, and that she should take her husband's advice—she and her husband being on admirable terms, as are most people shortly after a marriage ceremony. The difficulty is that some 10 or 15 years later, when the marriage is on the rocks, she will see clearly the importance of having rights under the Bill. The husband would be clutching a waiver and saying "I am awfully sorry, but you gave up those rights all those long years ago. It is now just too bad."

We tried to deal with that problem in Committee. I accept that it was a rough and ready approach and one which the Minister was probably right to resist. We tried to deal with it by removing the right to sign a waiver. Perhaps that was too extreme a remedy. As the Minister pointed out, it would have left the common law rights to sign a waiver without the protections of having to have a notarised declaration that no force or pressure had been used. The wife might then have been in an even weaker position.

Amendment No. 27 is clearly a more sophisticated, and I hope more acceptable, approach to the problem. It provides that an element of discretion should be available to the courts. If a wife signed a renunciation or waiver shortly after marriage, and there is then a substantial interval of time before the marriage is in trouble, her husband will say to her, and perhaps to two or three children, "Get ye gone". That returns to the days of the Victorian penny dreadful when wives were put out into the snow. The husband would be able to do that because he was the owner of the house and the occupancy right had been defeated by the waiver.

In circumstances where there is extreme prejudice, it should be possible to go to the courts and ask them to set aside the renunciation on the basis that there had been a substantial change of circumstances since it was signed, and that it was just and reasonable to set it aside. It builds in a discretion in an attempt to ensure an element of flexibility. A wife who may be young and inexperienced in matters of property and who may not comprehend—or may not be prepared to comprehend—the possibilities of unhappiness entering the matrimonial home when she signs the waiver should not find herself hopelessly prejudiced because of that act.

In a sense, the Minister was right to resist attempts to insert a proviso that before a waiver is signed there has to be legal advice on the significance of signing it. I can understand why he did so. As the safeguard cannot be available in his view, it seems that the element of flexibility provided by the amendment is all the more important.

I buttress my argument by saying that it is not only the wife who is involved. I recognise that it is only the wife who would have rights under the Bill. However, the criteria that are set out in clause 3(3) rightly ensure that the needs of any child of the family bulk very large. I am worried about the situation in which a wife may cheerfully sign the waiver when she has no family. She may be badly prejudiced by her perhaps ill-advised judgment or action at the time. At the same time the occupancy right that would almost certainly have been granted to help protect the children and to give them a home would be ruled out. That means that the children may be severely prejudiced, too.

I am not trying to say that a waiver should be made meaningless. The courts must be satisfied that there has been a genuine change of circumstance. They must be satisfied that it would be right to disregard the waiver. The onus of proof would be much upon the applicant. In many respects the Bill gives discretion to the courts. If there is to be a dealing in a matrimonial home, the consent of the non-entitled spouse is necessary. I accept that it is a consent that can be set aside by the courts. I have no doubt that the courts will use their discretion sensibly in the circumstances.

I ask that the same flexibility should be built into the Bill to cover the extremely important issue raised by the amendment. It may be that through force, ignorance, inadvertence or optimism a situation may arise in which after many years it will become clear that the waiver represents a severe prejudice to social justice and to the rights of the wife and the children. That will become apparent if there is a crisis and the crunch comes in the marriage. As I have said, the onus of proof should be firmly on the applicant, but it should be possible to approach the courts to ask them to exercise a wise and humane discretion. In that spirit I urge strongly on the Minister the worth and justice of the amendment.

Dr. M. S. Miller

It is not pitching it too high to say that the value of the Bill—I do not deny that it is considerable—depends upon the clause that we are discussing. However, its value may be considerably reduced if the clause remains exactly in its present form. I pay tribute to the Under-Secretary for the changes that he agreed to make in Committee. I pay especial tribute to him for agreeing to remove the reference to "justice of the peace" in clause 6. The hon. Gentleman understands that a justice of the peace may sign something without being concerned with the contents of the document. When performing that act he is merely witnessing a signature.

I am concerned that the clause is not sufficiently strongly slanted towards safeguarding the wife when a marriage breaks down. It is easy to say that the issue is met by making a renunciation possible if it is sworn or affirmed before a notary public. To a legal mind, that seems to satisfy all requirements. However, in practical terms that is sometimes not enough. We all know that a swearing of that kind brings with it a renunciation of rights that can be obtained by means that are difficult to prove but which nevertheless are good.

For example, there are brutal husbands who abuse and terrorise their wives. That abuse or terror normally arises from physical violence but it can he occasioned by mental cruelty. The husband can say "If you do not renounce your rights, you will suffer the consequences. If you think that you have had a hammering tonight, imagine what your hammering will be tomorrow." That is difficult to prove in a court of law unless the woman appears with bruises and black eyes. It is difficult to prove that coercion has occurred. On occasions it may be achieved in a more subtle manner. If the woman signs the waiver, she loses any right that has been accorded to her.

Before we allow the Bill to pass through the House in its present form with the clause intact, we should consider carefully how we can strengthen the right of the spouse, who in these circumstances is usually the woman. I have had experience in my medical practice of circumstances of the sort that I have described. We have all had similar experience in our political lives. It is no use wringing our hands afterwards and saying "There is no proof. There is nothing that we can do about it." We should be strengthening the Bill and not allowing this weak part to remain. To mouth a cliche or platitude, a chain is as strong as its weakest link. We are discussing the weak link. It is the link which allows a brutal husband to threaten, intimidate and coerce his wife and to make her go to a notary public to renounce her rights to the matrimonial home.

I hope that the Minister will accept the amendment. It would result in some strengthening of the clause. I agree that it is not possible to cover every case. However, the Bill is largely applicable to cases which involve brutality to wives, and such cases are by no means few. In some areas the majority of cases will involve the break-up of a marriage because of brutality. I hope that the Minister will accept the amendment because it would give the courts more say, more interest and a possibility to order more investigations to be carried out if there was any suspicion whatever that the renunciation had been made under duress.

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I cannot too strongly urge the Minister to agree with my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) and those members of the Committee who pushed for the inclusion of an amendment such as this. I plead with him to consider carefully the necessity for such an amendment.

Mr. Rifkind

I begin by reassuring the hon. Member for East Kilbride (Dr. Miller). He is concerned that a spouse may, through fear or through the exercise of violence, be forced into renouncing her rights against her free will.

The Bill in its present form makes it abundantly clear that any purported renunciation of right that can be shown to have been made under duress would be invalid. It is not necessary to add a new clause or an amendment allowing the court to invalidate such a renunciation simply because it transpires that there had been no free will to start with. Clause 1 in its present form states specifically that any renunciation shall have effect only if at the time of making the renunciation, the non-entitled spouse has sworn or affirmed before a notary public that it was made freely and without coercion of any kind. If it can be demonstrated at any time that the renunciation was not made freely and without coercion of any kind I have little doubt that any so-called renunciation would be held to be invalid in any event. The fundatnental requirement for such a renunciation to be valid would not have been met.

Dr. M. S. Miller

The Minister says "If it can be shown at any time that there was some kind of intimidation". What does he mean by "any time"? Is it six months, a year or two years later?

Mr. Rifkind

If the spouse is required to swear that the renunciation was made freely and without coercion of any kind she cannot do so if it is false, if she is under duress at the time of swearing and if she is making such an oath when she is under fear of violence and so on. Any oath made in those circumstances would clearly not be freely given, and therefore the fundamental basis on which the renunciation had been made, the fundamental requirement for the renunciation to have effect, would not have been satisfied. If those circumstances existed and could be demonstrated subsequently, it would invalidate any apparent pledge or vow that had been given by the spouse concerned.

Mr. Dewar

I understand what the Minister is saying, but it is a fairly obscure point. He is saying that if the oath before the notary public had been extracted by violence, or fear of violence, that would make it invalid. Presumably in that case one would have to petition the courts—perhaps the Court of Session with a petition to the noble officium—to have the prima facie evidence of the notarised oath set aside. That would be a complicated and difficult procedure. I believe that to be an additional argument for inserting a statutory discretion to make it clear that the courts could deal with such a case.

Mr. Rifkind

If the other arguments in favour of the hon. Gentleman's amendment were persuasive, I agree that this would be an additional benefit. However, at the moment I am dealing with the specific example that concerned the hon. Member for East Kilbride—that where an oath had been given to a notary public saying that the renunciation was freely given and without duress and that was not the case, that would not be a change in circumstances such as that referred to in the amendment. That would be a matter that related to the original renunciation. Therefore, even the amendment would not help to deal with the problem. There would not be a change of circumstances. The circumstances would be relevant to the renunciation itself and would invalidate that renunciation.

The Government have accepted all along that if we are to have the right to renounce, proper safeguards will be required. We have come a significant way since the original recommendations by the Law Commission, in order to meet not only what we began by believing to be appropriate but the points raised by the hon. Gentleman.

In Committee the hon. Member for East Kilbride welcomed the fact that we accepted the Opposition amendment to remove the possibility of a justice of the peace being all that was required to certify a renunciation. I accepted that that was a worthwhile suggestion made by the Opposition which, on consideration, we were inclined to accept as a substantial improvement on the existing wording of the clause.

There is another major way in which we changed the original proposals of the Law Commission. The Law Commission says specifically in its memorandum and in its report that any renunciation by a non-entitled spouse should apply not only to the matrimonial home in which the parties were living but to any future matrimonial home. Therefore, a renunciation would apply even to a house which might be purchased later in the marriage.

As the House will see from the Bill in its present form, any renunciation comes to an end if the parties move house. As that is by far the most normal circumstance of the vast majority of married couples in the early years of their marriage, if a renunciation were to continue a new one would be required. The clause at present says: A non-entitled spouse may renounce in writing his or her occupancy rights, only—

  1. (a) in a particular matrimonial home; or
  2. (b) in a particular property which it is intended by the spouses will become a matrimonial home."
Therefore, there is no open-ended, lifelong renunciation such as the hon. Member for Glasgow, Garscadden (Mr. Dewar) mentioned. The hon. Member also mentioned the children of the marriage. If examined further, those points too do not have as much persuasive substance as there might be.

Firstly, there is the point to which I have just referred, that the parties, when they are first married and have no children, are likely to have smaller accommodation. If children are then born, in the normal circumstances the couple will move to another matrimonial home, in which case the renunciation will become invalid. I am using that not as a final argument but only as a relevant consideration.

If the couple are living in the original matrimonial home and children are born, I suggest that the hon. Member's amendment would not meet that requirement. His amendment specifically restricts any change in circumstances to a change in circumstances which might prejudice not the children of the marriage but the said non-entitled spouse. Therefore, there has to be a change in circumstances of that kind which would have to be fulfilled to meet a requirement, even in the hon. Gentleman's amendment. I suggest that that does not meet the point raised by the hon. Gentleman.

There is also a further basic consideration which we have to take into account. It relates to one of the original reasons why renunciation is provided for in the Bill. One of the points of a right of renunciation is, as my hon. Friend the Member for South Angus (Mr. Fraser) said in Committee, the possibility that renunciation by a non-entitled spouse may be a condition of a loan being provided to assist the entitled spouse in respect of a mortgage on the property, in respect of his own business or due to some other consideration—a not unusual circumstance.

If the basis of that renunciation is to provide a guarantee to the third party, it would otherwise not be available. If, in certain circumstances from the moment it has been granted, a renunciation is to be able to be revoked by the courts on non-specified circumstances which may not exist when the renunciation is initially granted, any third party relying on that renunciation would be in an impossible position and its requirement would not have been satisfied.

Mr. Dewar

rose—

Mr. Rifkind

I shall give way to the hon. Gentleman, reminding him that the circumstances put forward by my hon. Friend the Member for South Angus in Committee were recognised by the hon. Gentleman as a relevant example of circumstances in which renunciation might be considered appropriate by both parties when it was made.

Mr. Dewar

I accept that. That arose in an interesting passage in which the hon. Member for South Angus (Mr. Fraser) had to erase doubts for the Minister as to whether renunciation was not final and whether it could be time-limited or tailored to specific circumstances. I accept that if one says that the courts should have a discretion, one could build up a nightmare in which the courts are impervious to reason and are faced with someone saying that the waiver was signed to allow him to raise money to keep a family business going and to keep 56 people in employment.

If we presuppose that, faced with such a situation, the courts will wreck that arrangement by saying that they will withdraw the waiver, we are giving such a massive vote of no confidence to the courts that the question is not open to serious argument or consideration. I therefore hope that the Minister will not press that point.

Mr. Rifkind

I am grateful to the hon. Gentleman for that intervention. While I appreciate that these are not circumstances in which the courts would normally want to exercise their discretion, they must look at the words contained in the statute, and the only relevant consideration that the courts would be enjoined to look at if the amendment were accepted would be whether there had been a substantial change in circumstances of prejudice to the non-entitled party. [Interruption.] If the right hon. Member for Glasgow, Craigton (Mr. Milian) wants to intervene, I shall happily give way. However, I am trying to answer his hon. Friend, and I am not helped if the right hon. Gentleman continually makes sedentary interventions.

Mr. Bruce Milian (Glasgow, Craigton)

I am not continually making interventions, sedentary or otherwise. I do not know why the hon. Gentleman is getting so excited. He is producing an extremely weak case. I was inviting him to read the remainder of the amendment.

Mr. Rifkind

The remainder of the amendment states: that there has been a substantial change in circumstance since the said renunciation was signed which might prejudice the said non-entitled spouse, and it seems in all the circumstances just and reasonable so to do.". However, according to the amendment, the main factor which the courts would be enjoined to take into account would be whether there had been a change of circumstance which was of prejudice to one person—the non-entitled spouse. That is the prejudice that the courts are specifically requested to take into account.

My point is that there may be circumstances, which might explain why the renunciation was originally entertained, which might lead to prejudice to a third party if the renunciation were revoked. I do not believe that that is a fundamental basis on which to make a change of this kind.

Mr. Dewar

The Minister seems to be erecting his main argument against the amendment on the fact that it is drafted in such a way that prejudice must be to the non-entitled spouse and could not include prejudice to the children. However, if the amendment were accepted, it would have to go to the other place, and presumably it would be possible to put that right there. I would be favourably disposed to such a change.

Mr. Rifkind

My point is that the Government are not encouraging people to renounce their rights. We have specifically said that that is a matter to be decided by adults, freely and without any intemperate or unacceptable pressure put upon them. We have already accepted important and justified safeguards put forward by the Opposition which will help ensure that any renunciation should be carried out with proper safeguards and with the presence of a notary public rather than a justice of the peace.

We have rejected the Law Commission's own desire that any renunciation should apply throughout the whole marriage to any matrimonial home, and we have restricted it to a specific matrimonial home. A renunciation by a spouse in those circumstances does not deserve more protection than any other legal document which a person signs before a notary public, aware of what he is doing. We do not normally provide for special circumstances whereby legal commitments, freely entered into, can be revoked by the courts simply because one party has petitioned that there has been a change of circumstance since the commitment was entered into.

At the moment, the spouse has no legal rights whatever. The Government have introduced a Bill to provide major legal rights. We have introduced original safeguards and added to them at the request of the Opposition. However, we are now considering an agreement freely entered into by both spouses, witnessed by a notary public, where the non-entitled spouse has had to give an oath that it was not made under duress and where a third party may have acted in good faith on the basis of that renunciation. Despite all these circumstances, we are asked to envisage that the court should be able to ordain that the agreement should be torn up, irrespective of the effect that that might have.

I am aware that the court would apply common sense to that criterion, but if we were always to view matters in that way we would allow any decision, any contract, to be renounced by the court if it were reasonable to do so. Normally, we say that if adults, using free will, make a contract, the courts are not entitled to tear it up simply because one party believes, and can put forward a persuasive case, that there has been a change of circumstance. The same principle can be applied to buying and selling a house and to other forms of contractual relationship. We do not normally apply that criterion and there are no persuasive arguments why we should in this case.

8.45 pm
Dr. M. S. Miller

We are dealing with matrimonial homes and family protection, not with the ordinary run-of-the-mill circumstances which the Minister mentioned. His list of cases in which a similar type of situation might arise is impressive, but the clause is concerned only with the protection of the occupancy rights of one spouse against another. Any break-up of marriage is a traumatic experience for the spouse who is adversely affected. The women's organisations feel that the clause should have been omitted, and I see their point. That was the advice that some people in Committee were giving. But the clause was not left out and is in itself a compromise.

We can understand that there will be circumstances in which a renunciation has to be made, but there should be an additional safeguard. The link is weak. With the additional safeguard, the link becomes a little stronger, and that is all we ask.

Mr. Rifkind

The hon. Gentleman is absolutely right in one matter. None of us would wish to encourage spouses to renounce their occupancy rights without first having given careful thought to it and unless it is certain that it is being done as an exercise of free will without undue duress. I do not in any way suggest that the renunciation of occupancy rights should be the norm, nor that we should encourage people to do that. The Bill in no way suggests that.

We are not dealing with children or with people who cannot be trusted to understand their position. That is a paternalistic approach which I do not think the Opposition would wish to take. We are dealing with adults. Where adults, freely and without duress, have made an agreement and sworn an oath before a notary public, and where there are proper safeguards, as exist in the Bill—partly thanks to the Opposition's proposals which have been accepted—that is a proper basis on which to deal with adult members of the community.

We must not say that contracts or agreements freely entered into can be repudiated unilaterally simply by showing a change of circumstance to the court. If people are concerned about possible changes of circumstance, they may not wish to enter into such a renunciation in the first place, and I would not blame them. Where they have so decided, it is a matter on which third parties may have acted and depended. For that reason—but not just for that reason—this is not an acceptable amendment.

I hope that the Opposition will appreciate that the Government have come a great deal of the way to ensuring that proper safeguards are introduced. We have not ignored the possibilities of abuse. We have made changes to the Law Commission's recommendations. We have accepted important Opposition amendments. But I cannot in all honesty recommend acceptance of an amendment which allows a freely-entered-into contract to be repudiated at a later date in the circumstances referred to.

Mr. Dewar

As the Minister might expect, I find that a most unsatisfactory reply. We cannot leave the matter there.

I do not take the view that the waiver is such an important matter in any event, because I believe that the circumstances in which it may legitimately be used are very limited indeed. Those who have read the report of the Committee proceedings will recall that the efforts of Conservative Members to cite circumstances in which a waiver could legitimately be used were almost farcical.

They founded their case, first, upon paragraph 2.77 of the Law Commission report, which suggested that money may be provided by a wife's family for the purchase of a matrimonial home but on condition that the husband prospectively renounces his occupancy rights on a general basis. In other words, a home is being bought by in-laws who have so little trust at the beginning of their daughter's matrimonial career as to insist that their son-in-law renounces all possible rights under the Bill. That seems to me to be an unlikely set of circumstances and one that I would not wish to encourage.

When Conservative members of the Committee were invited to embroider their case and to explain exactly when these circumstances would arise, we heard an extraordinary selection of suggestions. The hon. Member for Moray and Nairn (Mr. Pollock), for example, offered the horrifying prospect of a man whose debutante daughter insisted upon marrying a dustman. He suggested that in those circumstances one would certainly want a waiver from the dustman, so that he would not get his—probably literally—dirty paws upon any house in which the wife's parents might have invested.

The hon. Member for South Angus (Mr. Fraser) said in Committee: What happens—and this summer it will happen again—is that a pretty young Scots girl"— a delightful prospect— will go off to Majorca for a sunny holiday and meet a delightful Spanish waiter, Manuel. Things take their course. She returns home three or four weeks later. He comes over to Scotland and a marriage follows …it might be described as a 'haftie' marriage".—[Official Report, First Scottish Standing Committee, 9 June 1981; c. 40.] I take it that he meant that the young lady was pregnant. The hon. Member thought that in those circumstances it would be proper to insist that the unfortunate Manuel renounced all his occupancy rights and signed a waiver just in case at some future date we had the horrifying prospect of a Spanish gentleman enforcing normal matrimonial rights under Scottish law.

Those were literally the only examples that the combined wisdom of Conservative Members could produce to justify the social case for this waiver with which nobody is to be allowed to tamper.

I believe that the number of cases in which people could justifiably demand that a waiver be signed is extremely limited. The good cases for a person voluntarily signing such a waiver would be limited to the extraordinary circumstances of this being done for a very short period, perhaps to allow the security of a matrimonial home to raise money to save a business, as has been mentioned. Certainly the general social case is not strong.

I therefore believe that we are on very strong ground in suggesting that the flexibility represented by this moderately worded amendment should be included in the Bill. The Minister said a few moments ago that somebody might refuse to enter into a waiver and that he would not blame him for that. The trouble is that people may thoughtlessly—perhaps without the canny caution displayed by the Minister—enter into a waiver and blame themselves afterwards. It is not a matter of the Minister blaming them. They would blame themselves when they found themselves in an impossible situation, perhaps many years later.

I am not impressed with the sanctity of contract argument paraded by the Minister. A contract is normally between two parties. This case, however, involves the unilateral renunciation of right by an individual. The House is therefore entitled to consider whether an element of flexibility should be written in, to ensure that an unfortunate mistake or error of judgment is not carried out. The Minister is right, of course, that if third parties have acted in good faith on the basis of the waiver that would be a relevant consideration which might lead the court to refuse to waive the renunciation when it came to decide the matter, but that is not an argument for saying that in no circumstances should the option be open to a party to have recourse to the courts.

The more I listen to the debate, the more certain I am that we are correct to insist on this matter. I invite my hon. Friends to divide the House.

Question put, That the amendment be made:—

The House divided: Ayes 86, Noes 149.

Division No. 237] [8.55 pm
AYES
Allaun, Frank Jones, Dan (Burnley)
Alton, David Lamond, James
Archer, Rt Hon Peter Lewis, Ron (Carlisle)
Bennett, Andrew (St'kp't N) Lofthouse, Geoffrey
Brown, Hugh D. (Provan) McCartney, Hugh
Brown, Ron (E'burgh, Leith) McElhone, Frank
Buchan, Norman McKay, Allen (Penistone)
Callaghan, Jim (Midd't'n & P) McKelvey, William
Campbell-Savours, Dale McTaggart, Robert
Canavan, Dennis Marks, Kenneth
Carmichael, Neil Marshall, D (G'gow S'ton)
Clark, Dr David (S Shields) Marshall, Dr Edmund (Goole)
Cocks, Rt Hon M. (B'stol S) Martin, M (G'gow S'burn)
Coleman, Donald Maxton, John
Concannon, Rt Hon J. D. Millan, Rt Hon Bruce
Cook, Robin F. Miller, Dr M. S. (E Kilbride)
Cowans, Harry Mitchell, R. C. (Soton Itchen)
Craigen, J. M. Morton, George
Cryer, Bob O'Neill, Martin
Cunliffe, Lawrence Palmer, Arthur
Cunningham, G. (Islington S) Powell, Raymond (Ogmore)
Davis, T. (B'ham, Stechf'd) Radice, Giles
Dempsey, James Roberts, Albert (Normanton)
Dewar, Donald Roberts, Ernest (Hackney N)
Dixon, Donald Robinson, G. (Coventry NW)
Dormand, Jack Rooker, J. W.
Duffy, A. E. P. Ross, Ernest (Dundee West)
Eadie, Alex Ross, Stephen (Isle of Wight)
Eastham, Ken Rowlands, Ted
Ellis, Tom (Wrexham) Silkin, Rt Hon J. (Deptford)
Ewing, Harry Skinner, Dennis
Fletcher, Ted (Darlington) Spriggs, Leslie
Freeson, Rt Hon Reginald Steel, Rt Hon David
Grant, George (Morpeth) Stoddart, David
Grant, John (Islington C) Strang, Gavin
Harrison, Rt Hon Walter Wainwright, E. (Dearne V)
Hart, Rt Hon Dame Judith Wainwright, R. (Colne V)
Haynes, Frank Welsh, Michael
Hogg, N. (E Dunb't'nshire) Wigley, Dafydd
Home Robertson, John Wilson, Gordon (Dundee E)
Hooley, Frank Winnick, David
Howells, Geraint
Hughes, Robert (Aberdeen N) Tellers for the Ayes:
Johnson, James (Hull West) Mr. James Tinn and
Jones, Barry (East Flint) Mr. James Hamilton.
NOES
Alexander, Richard McQuarrie, Albert
Aspinwall, Jack Major, John
Atkins, Robert (Preston N) Marlow, Tony
Baker, Nicholas (N Dorset) Mather, Carol
Beaumont-Dark, Anthony Mawhinney, Dr Brian
Benyon, Thomas (A'don) Meyer, Sir Anthony
Benyon, W. (Buckingham) Miller, Hal (B'grove)
Bevan, David Gilroy Mills, Iain (Merlden)
Biffen, Rt Hon John Mills, Peter (West Devon)
Biggs-Davison, John Moate, Roger
Blackburn, John Morgan, Geraint
Bonsor, Sir Nicholas Morrison, Hon C. (Devizes)
Boscawen, Hon Robert Mudd, David
Bowden, Andrew Murphy, Christopher
Braine, Sir Bernard Myles, David
Bright, Graham Neale, Gerrard
Brinton, Tim Newton, Tony
Brown, Michael (Brigg & Sc'n) Onslow, Cranley
Bruce-Gardyne, John Page, John (Harrow, West)
Buck, Antony Page, Rt Hon Sir G. (Crosby)
Budgen, Nick Page, Richard (SW Herts)
Bulmer, Esmond Patten, John (Oxford)
Butcher, John Pattie, Geoffrey
Cadbury, Jocelyn Pollock, Alexander
Carlisle, John (Luton West) Prentice, Rt Hon Reg
Chalker, Mrs. Lynda Rathbone, Tim
Chapman, Sydney Renton, Tim
Clark, Hon A. (Plym'th, S'n) Rhodes James, Robert
Clark, Sir W. (Croydon S) Ridley, Hon Nicholas
Clarke, Kenneth (Rushcliffe) Rifkind, Malcolm
Colvin, Michael Roberts, M. (Cardiff NW)
Cope, John Rossi, Hugh
Cranborne, Viscount Rost, Peter
Dean, Paul (North Somerset) Sainsbury, Hon Timothy
Dickens, Geoffrey Shaw, Giles (Pudsey)
Dorrell, Stephen Shaw, Michael (Scarborough)
Douglas-Hamilton, Lord J. Shepherd, Colin (Hereford)
Dover, Denshore Sims, Roger
Dunn, Robert (Dartford) Skeet, T. H. H.
Eggar, Tim Speed, Keith
Fairbairn, Nicholas Speller, Tony
Falrgrieve, Russell Spence, John
Fenner, Mrs Peggy Spicer, Jim (West Dorset)
Fletcher, A. (Ed'nb'gh N) Spicer, Michael (S Worcs)
Fletcher-Cooke, Sir Charles Sproat, Iain
Fox, Marcus Squire, Robin
Fraser, Peter (South Angus) Stanbrook, Ivor
Gardiner, George (Reigate) Stanley, John
Garel-Jones, Tristan Stewart, A. (E Renfrewshire)
Glyn, Dr Alan Stradllng Thomas, J.
Goodlad, Alastair Taylor, Teddy (S'end E)
Gow, Ian Tebblt, Norman
Gower, Sir Raymond Temple-Morris, Peter
Greenway, Harry Thatcher, Rt Hon Mrs M.
Griffiths, Peter Portsm'th N) Thorne, Neil (Ilford South)
Grylls, Michael Thornton, Malcolm
Hamilton, Hon A. Townend, John (Bridlington)
Hannam,John Trippier, David
Haselhurst, Alan Viggers, Peter
Hawksley, Warren Waddington, David
Heddle, John Walker, B. (Perth )
Hordern, Peter Walker-Smith, Rt Hon Sir D.
Howell, Ralph (N Norfolk) Waller, Gary
Hurd, Hon Douglas Ward, John
Jopling, Rt Hon Michael Warren, Kenneth
Kaberry, Sir Donald Watson, John
Kershaw, Anthony Wells, Bowen
Knight, Mrs Jill Wlckenden, Keith
Lang, Ian Winterton, Nicholas
Lawson, Rt Hon Nigel Wolfson, Mark
Le Marchant, Spencer Young, Sir George (Acton)
Lester, Jim (Beeston) Younger, Rt Hon George
Lloyd, Peter (Fareham)
Luce, Richard Tellers for the Noes:
Lyell, Nicholas Mr. Selwyn Gummer and
MacGregor, John Mr. Donald Thompson.
MacKay, John (Argyll)

Question accordingly negatived.

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