COMMONS AMENDMENTS (Hansard, 1 July 1985)

§ Lord Cameron of Lochbroom
My Lords, with the leave of the House, I beg to move that this House do agree with the Commons in their Amendments Nos. 1 to 25 en bloc. Some of the amendments are of a minor nature but I think it is right to refer to certain of them in detail. I do so first of all with Amendment No. 2, which runs along with Amendments Nos. 4, 5 and 6.
These amendments arise out of a suggestion made at an earlier stage by the noble and learned Lord, Lord McCluskey, who is now on the Cross-Benches, and are intended to make clear that where the Bill enables a party to apply to the court upon a change of circumstances for variation or recall of an existing order, whether for aliment, payment of capital sum or transfer of property or for periodical allowance or to vary or terminate an agreement to pay aliment, such application can be made only where the change of circumstances is material. It seems desirable to avoid the implication that any minor change might justify an 1016 application and to discourage frivolous or vexatious litigation.
Amendment No. 3, which is an amendment to Clause 6, with certain consequential amendments, Amendments Nos. 16, 17, 18, 24 and 25, deals with a different problem; namely, the problem of claims by parties in an action for declarator of nullity of marriage. As drafted Clause 17(2) allows a pursuer in an action for declarator of nullity of marriage to claim interim periodical payments. This provision was included as the Scottish Law Commission considered that if a party to an action of nullity of marriage was to have the right to claim periodical allowance he should also have the right to claim interim payments pending disposal of the action. There is, however, a certain problem arising out of the fact that a party in such an action—the pursuer—is denying that there is a marriage and thus that any obligation of aliment arises. Similarly, a defender in such an action could agree with that and in these circumstances he or she would not be entitled to make use of Clause 6(1).
The drafting of Clause 17(2) is deficient, however, in that it gives a right only to a pursuer, while in some circumstances a defender might also be entitled to rely on it. It seems undesirable that there should be two different remedies for financial relief available to parties to a nullity action, interim aliment under Clause 6(1) in some circumstances and interim periodical payments under Clause 17(2) in others. Moreover, it is difficult to reconcile the more stringent requirement under Clause 17(3) that an award may be made only if the court is satisfied that it is necessary to relieve financial hardship, with the wide discretion given to the court in the event of an application for interim aliment under Clause 6(2).
Accordingly it has been decided that it would be better to amend Clause 6(1) to enable either party to claim interim aliment in any consistorial action, including an action for declaration of nullity of marriage, irrespective of whether he claims the marriage is valid or invalid. This makes it possible to dispense entirely with the concept of interim periodical payments.
Amendments Nos. 10 and 11 amend Clause 14. The effect of the amendments is to disapply Sections 6, 7 and 8 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 from incidental orders which grant a party to a marriage the right to occupy the matrimonial home after divorce. The purpose of the amendments is to remove a burden that the application of the provision would impose upon both the Department of Registers and on conveyancers on the basis that the extensive powers available to the court both elsewhere under the Bill and at common law should provide sufficient protection against the effect of adverse dealings.
Both the Law Society of Scotland and the Department of Registers made representations that the application of the provisions in the Bill to incidental orders granting the right to occupy a matrimonial home would impose an extremely heavy burden on conveyancers and upon the Keeper of Registers. In every transaction relating to residential property they would have had to investigate whether there were latent rights to occupy deriving from such 1017 an incidental order, in addition to investigating whether there were latent occupancy rights of spouses under the 1981 Act. It was concluded that there would be little justification for this to deal with what would be a limited number of cases if there were other reasonable safeguards available.
There is a significant difference between the position under the 1981 Act and the position under the present Bill; this is that the granting of occupancy rights will be under the control of the court from the outset. The court in a divorce action could accordingly be asked by a spouse to use its powers to protect his or her occupation rights in advance against adverse dealings. In addition to its common law powers and the specific powers to counter avoidance transactions given in Clauses 18 and 19, the court is given very wide power by Clause 14 to make any ancillary order which is expedient to give effect to its orders. Thus having regard to these various powers, the court could interdict the husband from disposing of, or otherwise dealing with, a house where the wife has obtained or is seeking an order granting her occupation. The husband would be liable for contempt of court if he breached such an interdict. The court could also in appropriate cases effectively protect the wife against adverse dealings by ordering the house to be transferred to the joint names of the husband and wife or by putting it in the name of trustees. In these circumstances, and particularly having regard to the representations that were made, it was considered that the amendments would be proper.
Amendment No. 14, which is an amendment to Clause 16, and Amendment No. 15 are intended to ensure that, where a periodical allowance on divorce is payable under a voluntary agreement, it will always be possible for a payer who is bankrupt to apply to the court to vary or satisfy the provision for periodical allowance, as may be appropriate in the circumstances. When a person becomes bankrupt, the trustee in bankruptcy will take possession of almost all his assets and probably a fair proportion of his income. In these new circumstances the amount of periodical allowance payable by the bankrupt to his divorced spouse may be quite unrealistic.
Where the periodical allowance is payable under a court order the bankrupt could apply for the order to be varied or set aside as appropriate under Clause 13. Where it is payable under agreement, and the agreement provides for variation, which most agreements are likely to do, he could apply for the periodical allowance to be varied or set aside as appropriate under Clause 16. It is only in those cases—probably very few—where the agreement does not provide for variation that difficulty could arise. The bankrupt could find himself liable to an obligation which is already unrealistic in the circumstances, which he has no means of paying and which the other spouse cannot in practice enforce. That cannot be satisfactory for anyone. It is to allow variation in those few cases that the amendment is proposed. I should add that the additional power to vary will of course last only while the bankruptcy itself continues.
Finally, I would mention one further amendment, Amendment No. 22, to Clause 25. The effect of this will be to restrict the presumption of equal ownership which is introduced by Clause 25 to household goods 1018 obtained in prospect of or during the marriage; and further, to exclude from that presumption any goods obtained from gift or succession from a third party. In another place the concern was expressed that the Bill does not expressly declare that property acquired or inherited by one party before the marriage, but not acquired in prospect of the marriage, should not be subject to the presumption of equal ownership. Amendment No. 22 is therefore intended to meet that concern. Accordingly, I beg to move Amendments Nos. 1 to 25.

§ Lord Morton of Shuna
My Lords, I wholly agree with these amendments and have nothing to add to the clear exposition of the noble and learned Lord the Lord Advocate. I welcome them all.

§ Lord McCluskey
My Lords, as one who took part in an earlier stage of this Bill, perhaps I may acknowledge what was said by the noble and learned Lord the Lord Advocate about the amendment which derives from certain suggestions I made. It is encouraging to know that, from whatever Benches one may find oneself speaking, if one has a serious point to make, the Minister is actually listening. I hope that in this spirit he will listen to what we have to say on other matters later this evening.