COMMONS AMENDMENT (Hansard, 14 October 1981)

§ The Earl of Mansfield
My Lords, on this occasion I beg to move that this House doth disagree with the Commons in the said amendment. It had been the Government's intention in another place to strengthen the occupancy right purported to be granted by a court so that it could not be defeated by a clandestine dealing on the part of the entitled partner. It has, however, proved extraordinarily difficult to graft this minor improvement on to the very complicated provisions of the Bill which relate to dealings. This was a Government amendment, I hasten to say, which was inserted with the agreement of the Opposition, possibly rather hastily at a late stage in the consideration of this Bill in another place.
401 The situation which the amendment sought to cover was where a non-entitled cohabiting partner had been granted a right of occupancy for a matter of months by the court but yet during that period the other partner sought to sell the house. This it does adequately, but on closer consideration it became apparent that the amendment also had some unintended consequences. These were such that further snags would be introduced into the already complex field of house purchase transactions in Scotland. The principal difficulty to be identified was the requirement in relation to all house purchases for the seller to provide an affidavit that he was not cohabiting. This would be needed in addition to the spouse's consent or renunciation, or to an affidavit of no non-entitled spouse in terms of Clause 6(3)(e). This would cause embarrassment to some and additional expense to all sellers of houses in Scotland.
Without being facetious, the position would have been reached, if this amendment was agreed to, that all those persons in Scotland who wished to sell their houses would not only have to complete what I might call the ordinary matters in relation to the fact that they either had or had not got a spouse and that spouse was not entitled, or else consented, or had renounced, but they would also have to certify on oath that they did not have a mistress, and to some, at any rate, that might in certain circumstances prove embarrassing.
Since this consequence was not foreseen when the amendment was debated there was no opportunity for the other place to consider the implications, and I rather doubt whether such a requirement would be welcomed in all quarters. If we are, as the Government wish, to make house purchase cheaper and more attractive, I do not think that the amendment would go very far to achieving that desire.
There is a further difficulty. To be effective against a clandestine sale of the house, a court order granting a right of occupancy would have to be registered in the Land Register, since it is not defined elsewhere in the Bill as an overriding interest. Thus, the amendment was intended to bring some modest relief in circumstances which are, I suggest, likely to arise infrequently—after all, cohabiting partners in rented houses will not be affected—and there remains the existing protection for a non-entitled partner to seek a separate court order under Clause 3(1)(e) if he or she is apprehensive about a possible sale of the house by the other partner.
In the circumstances, the Government have come to the conclusion that the slight, though desirable, benefits achieved by the amendment are outweighed by the various difficulties which I have outlined. Within the present framework of the Bill, there are no ready alternative means of achieving its objective without undesirable consequences of some kind. My honourable friend Mr Rifkind has been in touch with the Opposition over these difficulties and I think it fair to say that I do not anticipate a constitutional clash between the Houses so far as the rejection of this amendment is concerned. I beg to move.

§ Lord Ross of Marnock
This was a Commons amendment, my Lords. We were satisfied with the clause when it left us, and the change was obviously made 402 inadvisedly by the Government in another place. The other place agreed to it and I think we are quite right to disagree, to send it back and let them have another look at it so they can see how wrong they were in the first instance.

The Earl of Selkirk
My Lords, I am relieved that my noble friend is taking this clause out. It would be putting cohabiting couples in very nearly the same position as married couples. I believe we still have a certain respect for the institution of marriage and in my view this would be going too far. I also believe it would enormously complicate the whole conveyancing of properties. We were talking about building societies, but of course this applies to banks, insurance companies and every individual. When one buys a house one is well advised always to get either an affidavit under the new Clause 2A or alternatively a renunciation from the wife; if one does not get that one could be in trouble. That is a further complication and therefore, on pure grounds of conveyancing and simplicity and certainly of ownership, it is desirable that the provision should be removed, and I am therefore grateful to the Minister.