COMMONS AMENDMENT (Hansard, 14 October 1981)

§ The Earl of Mansfield

I beg to move that this House doth agree with the Commons in their Amendment No. 11. This amendment was in fact proposed by the Opposition in another place. It arises from a concern that qualified legal advice should be available before renunciation is given. Your Lordships may recall that we debated this question of renunciation ourselves, as also did the other place. The conclusion was reached that, for the reason I have stated—namely, that qualified legal advice should be available—it was thought that a renunciation ought only to be sworn before a notary public. A justice of the peace might be unlikely to have the necessary grasp of the law to offer competent advice on this important step and that is because justices of the peace in Scotland as in England can be lay persons. The amendment accordingly removes the possibility of a renunciation being sworn before a justice of the peace, thus requiring that a renunciation must be sworn before a notary public—and in Scotland a notary public must be a solicitor.

§ Lord Ross of Marnock

My Lords, this is an important amendment. We are giving a completely new right, mainly to spouses who do not share the ownership or tenancy of a house and, if we make it too easy to obtain renunciation, then virtually in the same clause we are giving the right and allowing it to be thrown away. Many people were concerned that the informality of swearing before a justice of the peace made it a little too easy to allow people to renounce their rights without appreciating how important they might be in three or four years' time when the circumstances of the marriage might be very difficult indeed. So, formalising it in this way and ensuring that legal advice will be available to the wife before she renounces—or to the husband if that be the case—is right and fair.

Many people who deal with the wives who are placed in the position of needing protection are not terribly satisfied with this. They would have liked the possibility of withdrawing that renunciation, it may be after a certain number of years. It just shows the importance of a wife in this position knowing what she is doing when she is renouncing this very valuable new right and forgetting that unfortunately today marriages do not last happily for ever.