COMMONS AMENDMENT (Hansard, 14 October 1981)

§ The Earl of Mansfield
My Lords, this amendment prevents an order to regulate the occupancy rights of the matrimonial home from having the effect of a de facto exclusion order. It is intended that exclusion shall only result from conduct injurious to the other spouse or to any children as set out in the next clause of the Bill, 385 Clause 4. I beg to move that this House doth agree with the Commons in the said amendment.

§ Lord Ross of Marnock
My Lords, on the face of it this amendment seems to be reasonable but it has been suggested to me that it might have some undesirable consequences. The effect of this amendment would be to prevent the courts from granting occupancy rights to the applicant non-entitled spouse, if the effect of that order is to exclude a non-applicant spouse who is also the owner or tenant of the house. It has been suggested to me that there is a glaring defect where the non-entitled spouse is also applying, not only for occupancy rights but also for exclusion, probably because of violence. It has been suggested to me that if the application for the exclusion order was granted then its effect would be to exclude the entitled spouse. But by this amendment the court is then obliged to refuse the application for occupancy rights. The absurd conclusion one comes to is that neither spouse can then occupy the matrimonial home. I do not know whether this is true or not, but if it is true, then it is virtually a nonsense. I wonder whether the Government have looked at this and whether or not the suggestions which have been put to me by the Scottish Womens' Aid are true. If they are then this is a pretty serious defect.

§ The Earl of Mansfield
My Lords, with respect, I do not believe that the doubts which have been expressed by the noble Lord, Lord Ross of Marnock, are justified in this case. I do not know whether the noble Lord has had occasion to read in Hansard the debate in another place, but this amendment arose following what I might call "bathroom debates"; they were debates of a clarity which only the other place can get up to. It was suggested that what the courts have to do under this clause is to regulate the occupancy rights to the matrimonial home. It was suggested that in an average house it would be impracticable to try and regulate the occupancy rights without causing possible sources of conflict between the spouses—for instance, over the use of the bathroom. Accordingly, it was proposed that in certain circumstances, by virtue of the operation of this clause, the occupancy rights of one spouse might be suspended. In those circumstances, this would amount to an exclusion order—and the noble Lord is perfectly right about that—without the requirement of injurious conduct laid down in Clause 4.
We are not talking here about exclusion orders or about injurious conduct, in this particular clause. An application under Clause 4 where violence is alleged is an entirely different matter. What the Government undertook to do as a result of that debate and the matters which were raised by the Opposition was to remove any doubt on this score. The amendment provides that the court shall have regard to the consequences in the practice of any restriction order so that it does not operate so harshly as to amount to a de facto exclusion order if the element of injury which is provided for in Clause 4 does not exist. In other words, it is a means of preventing a court from making what one might call a back-door 386 exclusion order where there is an absence of violence and/or injury.
As the noble Lord, Lord Ross of Marnock, knows very well, exclusion orders are a radical innovation in Scottish law, which are justified only when the physical or mental health of the other spouse or any children is at risk. To that extent, the amendment closes the door on any uncertainty as to the permissible effects of an order under Cluase 3. The amendment is entirely consistent with the spirit and intention of the Scottish Law Commission's recommendations on this matter.

§ Lord Ross of Marnock
My Lords, I have something more than a feeling that this Bill is becoming so complex that many people will not resort to the advantage it gives. Hitherto in this clause we have been giving guidance to the courts, but here we are saying to the courts, "Thou shalt not". No discretion is given to the court here. There is nothing here to say that this provision does not apply where there is violence. It may well be that there is a need to grant an exclusion order—and remember we are here talking about interim orders—and if it had been absolutely clear that if domestic violence was alleged or Clause 4 applied it would be a different matter, and that such cases could be excluded, then it would be much better.
The people who have been writing to me are the people who are dealing with this kind of problem—the problems of broken homes—every day. I would be very glad indeed to be able to inform them that they are mistaken in this respect, but I would rather have a very clear statement from the Minister that the circumstances which I described—which was their case—just could not arise and that such circumstances were entirely covered by Clause 4. But is a second application needed under Clause 4?

§ The Earl of Mansfield
My Lords, what Clause 3 does is to regulate the rights. An application is made to the courts under Clause 3(1) to declare the rights and the order which is prohibited is under Clause 3(3) or 3(4). The form of the order and the relief which is granted, whether it is under Clause 3 or Clause 4, are two different things according to the circumstances of the case. What I can tell the noble Lord is that none of the wives who are at risk—and these are the people about whom he is really concerned—will have their rights in any way fettered under this Bill as a result of this particular amendment.