HL Deb 16 October 1985 vol 467 cc658-61

35 Clause 16, page 16, line 22, at beginning insert 'Subject to section [Protection of rights of spouse against arrangements intended to defeat them] (1)(b) of this Act,'.

41 Clause 17, page 18, line 12, at end insert ', or of any order under section [Protection of rights of spouse against arrangements intended to defeat them] (1)(b) of this Act,'.

82 Clause 31, page 32, line 6, leave out from 'may' to 'shall' in line 9 and insert ', after having regard to all the circum stances, determine a suitable amount to allow for—

  1. (a) aliment for the debtor; and
  2. (b) the debtor's relevant obigations;
and if the debtor's income is in excess of the total amount so allowed the sheriff.

83 Page 32, line 10, at end insert— '(2A) The debtors relevant obligations referred to in paragraph (b) of subsection (2) above are—

  1. (a) any obligation of aliment owed by him ("obligation of aliment" having the same meaning as in the Family Law (Scotland) Act 1985);
  2. (b) any obligation of his to make a periodical allowance to a former spouse;
but any amount allowed under that subsection for the relevant obligations need not be sufficient for compliance with a subsisting order or agreement as regards such aliment or periodical allowance.'.

84 Page 32, line 15, leave out subsection (4) and insert— '(4) Diligence in respect of a debt or obligation of which the debtor would be discharged under section 52 of this Act were he discharged under section 51 thereof shall not be competent against income vesting in him under subsection (1) above.'.

92 Clause 34, page 35, line 38, after '1976', insert 'or section 8(2) of the Family Law (Scotland) Act 1985,'.

93 Page 35, line 39, at end insert 'or under the said section 8(2) for the transfer of property by him'.

94 Page 36, line 15, leave out ', after having regard to all the circumstances of the case,'.

95 Page 36, line 17, after '5', insert 'or 8(2)'.

96 Page 36, line 19, after 'paid', insert ', or as the case may be for the return to the applicant of all or part of any property already transferred.'.

97 Page 36, line 19, after 'order', insert ', or, where such property has been sold, for payment to the applicant of all or part of the proceeds of sale: Provided that before making an order under this subsection the court shall have regard to all the circumstances including, without prejudice to the generality of this proviso, the financial, and other, circumstances (in so far as made known to the court) of the person against whom the order would be made.'.

103 Clause 37, page 40, line 5, after 'Act,', insert 'and subject to section [Power of permanent trustee in relation to the debtor's family home] of this Act,'.

109 After Clause 38, insert the following new clause: "Power of permanent trustee in relation to the debtor's family home. .—(1) Before the permanent trustee sells or disposes of any right or interest in the debtor's family home he shall—

  1. (a) obtain the relevant consent; or
  2. (b) where he is unable to do so, obtain the authority of the court in accordance with subsection (2) below.
(2) Where the permanent trustee requires to obtain the authority of the court in terms of subsection (1)(b) above, the court, after having regard to all the circumstances of the case, including—
  1. (a) the needs and financial resources of the debtor's spouse or former spouse;
  2. (b) the needs and financial resources of any child of the family;
  3. (c) the interests of the creditors;
  4. (d) the length of the period during which (whether before or after the relevant date) the family home was used as a residence by any of the persons referred to in paragraph (a) or (b) above,
 may refuse to grant the application or may postpone the granting of the application for such period (not exceeding twelve months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe. (3) Subsection (2) above shall apply—
  1. (a) to an action for division and sale of the debtor's family home; or
  2. (b) to an action for the purpose of obtaining vacant possession of the debtor's family home,
 brought by the permanent trustee as it applies to an application under subsection (1)(b) above and, for the purposes of this subsection, any reference in the said subsection (2) to the granting of the application shall be construed as a reference to the granting of decree in the action. (4) In this section—
  1. (a) "family home" means any property in which, at the relevant date, the debtor had (whether alone or in common with any other person) a right or interest, being property which was occupied at that date as a residence by the debtor and his spouse or by the debtor's spouse or former spouse (in any case with or without a child of the family) or by the debtor with a child of the family;
  2. (b) "child of the family" includes any child or grandchild of either the debtor or his spouse or former spouse, and any person who has been 660 brought up or accepted by either the debtor or his spouse or former spouse as if he or she were a child of the debtor, spouse or former spouse whatever the age of such a child, grandchild or person may be;
  3. (c) "relevant consent" means in relation to the sale or disposal of any right or interest in a family home—
    1. (i) in a case where the family home is occupied by the debtor's spouse or former spouse, the consent of the spouse, or, as the case may be, the former spouse, whether or not the family home is also occupied by the debtor,
    2. (ii) where sub-paragraph (i) above does not apply, in a case where the family home is occupied by the debtor with a child of the family, the consent of the debtor, and
  4. (d) "relevant date" means the day immediately preceding the date of sequestration.".

110 After Clause 38, insert the following new clause: "Protection of rights of spouse against arrangements intended to defeat them. .—(1) If a debtor's sequestrated estate includes a matrimonial home of which the debtor, immediately before the date of issue of the act and warrant of the permanent trustee (or, if more than one such act and warrant is issued in the sequestration, of the first such issue) was an entitled spouse and the other spouse is a non-entitled spouse—

  1. (a) the permanent trustee shall, where he—
    1. (i) is aware that the entitled spouse is married to the non-entitled spouse; and
    2. (ii) knows where the non-entitled spouse is residing,
inform the non-entitled spouse, within the period of 14 days beginning with that date, of the fact that sequestration of the entitled spouse's estate has been awarded, of the right of petition which exists under section 16 of this Act and of the effect of paragraph (b) below; and
  1. (b) the Court of Session, on the petition under section 16 of this Act of the non-entitled spouse presented either within the period of 40 days beginning with that date or within the period of 10 weeks beginning with the date of sequestration may—
    1. (i) under section 17 of this Act recall the sequestration; or
    2. (ii) make such order as it thinks appropriate to protect the occupancy rights of the non-entitled spouse;
 if it is satisfied that the purpose of the petition for sequestration was wholly or mainly to defeat the occupancy rights of the non-entitled spouse. (2) In subsection (1) above— entitled spouse" and "non-entitled spouse" have the same meanings as in section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981; matrimonial home" has the meaning assigned by section 22 of that Act as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985; and occupancy rights" has the meaning assigned by section 1(4) of the said Act of 1981.".

223 Schedule 7, page 91, line 7, at end insert— The Family Law (Scotland) Act 1985 (c.) In section 14(5)b) for the words from 'section 30" to "1913" there shall be substituted the words "section (Protection of rights of spouse against arrangements intended to defeat them) of the Bankruptcy (Scotland) Act 1985.".

237 Schedule 8, page 94, line 14, at end insert—

'1981 c. 59. The Matrimonial Homes (Family Protection) (Scotland) Act 1981. Section 10.'.

Lord Cameron of Lochbroom

My Lords, I beg formally to move that this House do agree with the Commons in their Amendment No. 35, and, for the convenience of the House, I will speak also to Amendments Nos. 41, 82 to 84, 92 to 97, 103, 109, 110, 223 and 237.

Amendments Nos. 35, 41, 110 and 223 have the effect of re-enacting with modifications the provisions of Sections 31A and 76A of the 1913 Act, which were inserted into that Act by Section 10 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. These provisions are intended to protect the occupancy rights of a non-entitled spouse to the matrimonial home if the purpose of the sequestration is wholly or mainly to defeat those rights.

Amendments 103 and 109 give effect in this Bill to a proposal first discussed in this House in the context of the Insolvency Bill: namely, the introduction of a procedure to postpone the sale of the family home. The new clause inserted by Amendment 109 provides the court with the power to postpone for up to 12 months or to impose conditions upon the permanent trustee's right to obtain vacant possession of or to sell or otherwise dispose of the family home. The effect of the new clause is to require the permanent trustee, in the absence of consent, to obtain the court's authority before he can sell or otherwise dispose of the family home. It also requires the court to take into account all the circumstances of the case—including the needs and financial resources of the occupants of the family home (other than the debtor) as well as the interests of the creditors—when considering a permanent trustee's application to sell or dispose of the family home, or any action of division and sale, or any other action to obtain vacant possession of the property.

Moved, That this House do agree with the Commons in the said amendment.—(Lord Cameron of Lochbroom.).

On Question, Motion agreed to.