Family Law Bill [H.L.]

HL Deb 30 January 1996 vol 568 cc1382-426

7.59 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord McColl of Dulwich) in the Chair.]

Clause 30 [One former spouse with no existing right to occupy]:

Earl Russell moved Amendment No. 184: Page 19, line 14, leave out subsections (1) and (2) and insert— (" .—(I) This section applies if—

1. (a) one cohabitant, former cohabitant, or former spouse is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation;
2. (b) the cohabitant, former cohabitant or former spouse is not so entitled; and
3. (c) the dwelling house—
4. (i) in the case of the cohabitants or former cohabitants, is the home in which they live together as husband and wife or a home in which they at any time so lived together or intended so to live together, or
5. (ii) in the case of former spouses, was at any time their matrimonial home or was at any time intended by them to be their matrimonial home.

(2) The cohabitant, former cohabitant or former spouse not so entitled may apply to the court for an order under this section against the other cohabitant, former cohabitant or former spouse ("the respondent").").

The noble Earl said: In speaking to this amendment, I shall also speak to this group of amendments standing in my name. We now enter on Part III of the Bill, which incorporates the former Family Homes and Domestic Violence Bill approved by this House last Session, having been given the most exhaustively careful scrutiny by a committee chaired by the noble and learned Lord, Lord Brightman. At Second Reading I studied the noble and learned Lord's speech with great care. I regret that he is unable to be present today. That is yet another reason why it is inappropriate to have a Division at the Committee stage of this Bill. I should not wish this matter to be resolved without the advice of the noble and learned Lord, Lord Brightman, if, by waiting until Report, we can have it resolved that way.

There are a string of small changes in this Part—changes introduced since the Bill went through this House last Session—and one large symbolic statement. The effect of these amendments is to cut out two clauses that were inserted to separate the status of cohabitants from that of married people, and in general to restore the Bill to its previous state. I have in front of me the noble and learned Lord's summary of the changes, so I hope that I shall not mislead the House. They are a little technical.

Where there is a cohabitant who does not have a clear legal title to occupy the House, the order to occupy can be renewed only for a period not exceeding six months. There will need to be a certain number of probing, Committee-type exchanges here. I need to understand exactly why it has appeared necessary to the Government to make this change. I need to know exactly what is the ground of the discrimination against the cohabitant—whether it is. as suggested by the wording of Clause 36, a moral one, or whether it is a legal one concerning a doubt about the person's status as occupant of the house.

I also have a smaller question, which I hope may be practically addressed. Why can such an order be renewed only once? Let us suppose, for example, that the victim of domestic violence also happens to be disabled, as sometimes happens. Let us suppose that the accommodation is purpose-built. One wonders whether in such circumstances there might be a case for allowing the woman to remain permanently in occupation, as she would have the right to do if she were a spouse. I still need to understand the precise thinking which justifies this distinction. Only then will I be able to address the question as to how far I am, or am not, convinced by it.

The next change that has been introduced relates to where there is a test of balance of harm for the victim of domestic violence to occupy the property. What was previously a duty on the judge to follow the balance of harm test has now been changed into a discretion, allowing the judge to weigh the balance of harm test against a number of other matters, including the financial interests of the party and the interests of the children.

I admit that I speak as a layman and not a lawyer in these matters; but, prima facie, either that change was right, both for spouses and cohabitants, or it was right for neither. Again, I do not understand the basis of the Government's thinking in making the distinction. I shall want to hear an answer to that question before deciding, at a later stage of the Bill, what I want to do in regard to the amendments.

The other technical change is that cohabitants have been deprived of the right to use an accelerated procedure under the Married Women's Property Act. Again, I admit that I speak as a layman, but I have not heard any technical description of the accelerated procedure or of the advantages or disadvantages of using it. Again, I want to understand in a way in which at present I do not, why that procedure should be available to spouses and not to cohabitants.

The change that causes me the most anxiety is the new Clause 36 that has been inserted into the Bill. It states: In deciding whether and (if so) how to exercise its power to make an occupation order, or its power under section 35, the court is to have regard to the fact that the parties have not given each other the commitment involved in marriage". First, that strikes me as a mistaken sense of priorities. However deep an attachment people may have to the principle of lawful matrimony, it is the first duty of the state to ensure the preservation of the Queen's peace. I feel a certain anxiety about the idea that anybody's morals, however bad, should make them less entitled to the protection of the Queen's peace than are other people. After all, even in the old days when there were public executions, people in the custody of the state on the way to execution used to be accorded the protection of the Queen's peace. In 1612 there was an extraordinary case in Spain when a heretic who was being taken to be burnt was set upon by the crowd and suffered 500 stab wounds—hut was rescued by the officers of the state before being burnt. It is a macabre story, but I understand the interest of the state in doing that. The monopoly of the right to violence is one of the defining marks of the state. I cannot help feeling that in suggesting that there is a group of people with a lesser right to protection from violence, the state is in danger of abdicating that position.

Secondly, the noble Lord, Lord Habgood, whose absence I much regret and whose return to our debates I very much look forward to—I understand that the noble Lord has not been well and I hope that he is making a good and happy recovery—argued at Second Reading that we should make this distinction because marriage is a public status. But with respect, cohabiting is a public status, equal with marriage.

Yesterday, we approved the jobseeker's regulations. We approved a reference on page 8 of those regulations to benefits going to, "a married or unmarried couple". In social security law that is perfectly normal. It is a public status, recognised through shared finances, shared bank account, joint responsibility for the housekeeping, jointly visiting the children's school to see the teacher, and all the things that married people do together. It is now a recognised status.

The British Academy is generally regarded as a respectable institution. When, over Christmas, it sent out invitations to the presidential reception, it invited fellows to say whether they intended to bring "their spouse or partner". What is respectable enough to be recognised by the British Academy is respectable enough to be recognised by the law of the land. Cohabitation is a public status. Many of us have friends, close relatives and others whom we know extremely well who are cohabitants. For those of us in that position, to have them set aside like this and given a sort of lower status, entitled to less protection, appears offensive.

I perfectly understand, and respect, the view of the those who think that only those who are married in the sight of God are married. It is a perfectly proper view. Those who think that believe that those who, like me—and the noble Lord, Lord Marsh, as we discovered on Thursday—were not married in church, are living in sin. Although it is perfectly proper for them to hold that view, as a matter of normal social courtesy they do not normally impinge it upon me or the noble Lord, Lord Marsh. It seems to me that in handling co-habitants we ought to do it in just the same way as those who believe only in religious marriage treat those who have undertaken a civil marriage. When I look at the actual words of the clause, they have not given each other the commitment involved in marriage.

Thinking of some co-habitant couples I know extremely well, I believe these words to be false. What I mean about the commitment involved in marriage is that determined—indeed, I might almost say, bloody-minded—determination to keep the relationship going in the face of every obstacle, every quarrel and every confusion; that one is simply not going to let go. Its political equivalent is something I observed—to take a small example—in the television appearance of Mr. Stephen Dorrell on the night of the Dudley by-election. It was one of the most impressive television performances by a politician that I have ever seen. He simply stuck to his last and was not letting go. That is what I understand by the commitment involved in marriage.

In my observation, co-habitants give just as much or as little as people who have been through the marriage ceremony. Indeed, what really amuses me, looking at my friends who decided to co-habit about 30 years ago, is that some of them believed that they were striking a blow for a new type of society. But in fact I have observed that they have become married couples, with their ups and downs, highs and lows, dull points and lively points, their strengths and weaknesses, exactly like any of the rest of us. It is because they live exactly like any of the rest of us that I believe that they deserve legal protection exactly as any of the rest of us. I beg to move.

8.15 p.m.

Lord Clifford of Chudleigh

I support the noble Earl, Lord Russell, in opposing the Question that Clauses 31 and 33 stand part of the Bill. I need not rehearse the circumstances of how Part III was introduced into the Bill. The Committee may well recall that the legislation fell during the last Session in its final consideration in another place as the Family Homes and Domestic Violence Bill. It fell two working days before it was due to become the law of the land. Its fall was swift and sudden. It fell because it was claimed that it was a consolidating measure but that claim proved to be false. That claim was maintained throughout the. Bill's passage through this House under the Jellicoe fast-track procedure. That claim was maintained throughout its passage in the other place under the fast-track procedure. It was maintained right up to the point where the Bill was about to become law; yet that claim proved inaccurate.

It seems to me a pity that the unfortunate and ill-fated Family Homes and Domestic Violence Bill should have been presented to the House in such a manner. It cannot but reflect badly on the respective fast-track procedures and on the way in which they are used. I wonder whether it is not now an appropriate time for the noble and learned Lord the Lord Chancellor to give some assurance to the Committee that the Jellicoe procedure will be used with a little more circumspection in relation to future Bills of the kind just mentioned.

Clauses 31 and 33 of the Bill, as we have heard, make provision for a new type of order in the family court which is to be known as an occupation order. It subsumes the orders currently made by the court which are commonly known as ouster orders and exclusion orders. I am aware that occupation orders may do other things. They can enforce the applicant's right to remain in the home or to enter the home. They can regulate the occupation of the home. However, the most important power will be to oust or exclude a party from the home.

I venture to suggest that if there is domestic tension or strife, it is that order which will continue to he most commonly sought after by applicants and, I might add, most commonly granted. Orders specifying which rooms a party may or may not use are not, I am told, very common and tend to be impractical. So it is with exclusion and ouster orders that we are mostly concerned.

In the case of Summers (1986) and additionally in the case of Tuck v. Nicholls (1988) the court made it clear that it viewed an ouster order as a "draconian" measure. That seems to me to be plain common sense. I suspect that it would be viewed as common sense by the vast majority of voters and citizens in the land. To throw a man or woman out of their own home by means of a court order must surely be a draconian action unless it involves a clear case of violence.

If there is to be any substantial change in the law in order to make such an order less than draconian, then clearly we need to be concerned. Part III of the Bill reproduces parts of the Matrimonial Homes Act 1983 and the Domestic Violence and Matrimonial Proceedings Act 1976 which specifically include co-habitants. Part III of the Bill, and these clauses, mark a change. The changes remove the requirement for the court to have regard to the conduct of the parties before making an order and instead there is an entirely new "balance of harm" test which will dictate when an order should or should not be made.

The test is this: an applicant must be suffering significant harm. That is defined in Clause 57 as, ill-treatment or the impairment of health". "Health" means "physical or mental health". The court may make an order unless the respondent is likely to suffer as much or more harm than the applicant when the order is made. Of course, the test applies equally to any child of the family.

At first sight that does not sound too bad does it? I remind the Committee of the case of Richard's (1984). The effect of that case was to arrest a tendency to grant injunctions on ever more flimsy grounds. Many courts would throw a man out of the home on the ground that one party said, "I refuse to live with that man". The noble and learned Lord, Lord Hailsham, occupying the office of Lord Chancellor, sought to ensure that a degree of blameworthy behaviour had to be proved against the man before he could be ousted from his own home. There the law now stands.

Enter Part III of the Family Law Bill 1996. Proof of such conduct will once again be unnecessary. The very words "conduct of the parties" are excised and in so doing we shall have taken a retrograde step. But that is not all. The Bill goes even further than that in defining "harm" so widely as to include impairment of health, including mental health, which goes well beyond what is considered sufficient in existing law to oust or exclude a party from the home. It is not even clear that the harm needs to be caused mainly or directly by the respondent. The harm suffered by the applicant may he attributable to other causes, for example, physical or mental disease, and the respondent's mere presence may do no more than to add to that harm, sufficient for it to become significant. No blame of any kind need be attached to the respondent; his mere presence may he sufficient.

If it is asserted that a child is being considered, one can readily see that it will be even easier to make out a case against a respondent. Indeed the definition of harm is even extended in the case of a child to include the impairment of development—a very different thing from domestic violence. What are we to say—that a child's low marks at school are a reason for ousting one of its parents from the matrimonial home? How can that be? one may ask. Yet low marks at school may well represent evidence of impairment of development. A child psychologist would not be asserting anything radical by giving evidence to that effect in a court of law. It would not be difficult in practice to secure a medical opinion that the presence of one party in the home is damaging the health of the other. Nor would it be difficult for one party to assert that the presence of the other is had for the children. All that party need assert is that the presence of the other merely contributes to their ill health or any upset to the children. The harm test nowhere requires that the harm is mainly or directly caused by the respondent.

This is plainly a recipe for rapid and irrational domestic chaos and family break-up. It is also astonishingly unjust. Even apart from the intrinsic injustice of this clause, it is not difficult to see how easily such a provision could be abused by an unscrupulous party, a party interested in gaining most for themselves. One party will readily perceive that they can obtain de facto custody of the children by the simple expedient of ousting the other party. Once applications for custody are made, the court will be reluctant to overturn any situation of de facto custody, for fear of further upsetting the settled life of the children. In fact this can happen under the existing law, but it will be very much easier to achieve under the provisions of these clauses.

The harm test, at the very least, should go. If conduct is restored then the harm test adds nothing and can be removed. Part III would then begin to look very much more like the consolidating measure that it is claimed to be. Part III, and particularly these clauses, arc not chiefly about domestic violence. In my reading of this part of the Bill I was unable to find even the word "violence" anywhere in it. Perhaps I have overlooked it and, if so, I should be very grateful if the noble and learned Lord would point it out. If not, then does he not agree with me that this lack is astonishing, in view of the fact that it is meant to make provision for domestic violence?

I trust that the noble and learned Lord will agree also that this part of the Bill is, in its current form, very far from satisfactory and requires substantial review and amendment. I hope that he will also be able to recognise and welcome efforts on the part of noble Lords to amend and restore this part of the Bill to a form where it can truly be said to be a consolidating measure, and not the radical departure from existing law which it clearly is in its present form.

I am aware that the noble and learned Lord has made some changes to this part of the Bill since it first appeared as the family homes Bill but, so far as I can see, they have not altered it very much except that for spouses the court has to make an order if the harm test is satisfied. This appears to prejudice spouses and to benefit cohabitants. Is that what the noble and learned Lord intended, may I ask? I urge upon the Committee the need to reconsider this part of the Bill at Report stage, but for the present I support the noble Lord in opposing the Question that Clauses 31 and 33 stand part of the Bill.

Baroness David

I should like to support the amendments moved by the noble Earl, Lord Russell. I was a member of the special committee dealing with the Family Homes and Domestic Violence Bill, as were three other people who are here tonight—a small assembly at this time of night—the noble Baroness, Lady Darcy (de Knayth), the noble Lord, Lord Meston, and myself, who were four members of that committee. I am quite sure that the noble and learned Lord cannot deny that we entirely agree that these clauses, as they were before being changed in the other place, were accepted by the Committee. There was no question about their acceptance: I do not think there was any debate about that.

We made changes in the Bill as it came from the Law Commission. Various clauses and an extra schedule were added, but the Bill as it came from the Law Commission was basically accepted, with a few changes. The Committee was very much agreed that it was not changed at Committee or Report stages. There was intensive discussion. We had, as I think the noble and learned Lord, Lord Brightman, said, 83 amendments discussed at various stages of the Bill. It was very thoroughly gone into and accepted. I find it very hard to believe that the noble and learned Lord could really have liked these changes which he accepted.

If we accept the changes now it will show that we are rather an ancient Chamber. A number of questions were raised at earlier stages in the Committee, but what is the message going out from this Chamber? I would say that the message we are sending, if we accept these changes, would be unrealistic. I must be one of the oldest Members of your Lordships' Chamber but I think I can accept that life is very different from what it used to be. There are a great many people in stable relationships—partners, or whatever they are called. I do not like the word, but that is apparently how they are currently referred to. The idea that cohabitees cannot be treated in the same way as married couples is ridiculous.

I hope that the noble and learned Lord will go back to what he apparently believed in for a considerable period during the long days of that Committee and indeed the Report stage and Third Reading. I hope he will think again about these amendments. It would be a very much better message from this Chamber if we go back to the Bill which we approved before it went to the Commons and which the other House misguidedly changed. They did not even get the Bill through: there was no advantage whatsoever in the changes that were made. I should also like to say that I support the amendments standing in the name of my noble friend Lord Irvine, Amendments Nos. 184A to 184C. I make a plea to the noble and learned Lord that we should get this Bill put back as it was when it left this Chamber.

8.30 p.m.

Baroness Lockwood

I too would like to support this series of amendments. In doing so, I must admit that for personal reasons I was not able to be involved in the previous Bill when it went through this Chamber and so I am coming to this current Bill with a fresh mind, conscious of the controversy which surrounded the withdrawal of the previous Bill.

Like the noble Earl, Lord Russell, I cannot see why Clause 36—the clause that requires the court to take account of the fact that the parties involved in cohabiting have not given each other the commitment involved in marriage—has been inserted into this Bill. The Bill concerns the breakdown of marriage. If a commitment in marriage has been given and then broken, that is surely equally bad, if not worse, than if a commitment had not been given in the first place.

Like my noble friend Lady David, I believe that we are now operating in a society with different values. However, though the values may be different, it does not follow that in all cases they are less valid. In circumstances where two people are cohabiting in good faith, and in particular where the woman may have made the same kind of sacrifice as a married woman—for instance, where children are involved she may have given up her job, thus losing her financial independence—I do not see why those two people should be treated any differently from the two parties in a marriage where the marriage has broken down. It follows therefore that I do not accept the proposals in the Bill whereby cohabitees and partners in marriage should be treated differently.

Much has been said in regard to the "harm" factor. Again, when we are looking at the breakdown of a relationship, we must look at the extent of the harm that is done, whether it is in marriage or in cohabitation. In his summary of the Bill the noble and learned Lord said that, even if the court made an order, that order would be confined to a maximum of one year whereas, under marriage, the order may be extended. But if an order is being made, it is far too rigid to say at the outset that that order will he for one year only. The same flexibility should apply in cohabitation as in marriage.

I hope the noble and learned Lord the Lord Chancellor will think again about the changes he has made in the Bill and look more favourably on the kind of Bill that he was advocating at the end of last year.

Lord Meston

The speech of the noble Lord, Lord Clifford, covered ground which was covered extensively in the course of the consideration of the Family Homes and Domestic Violence Bill during the last Session. So far as the improvements to the existing law are preserved by this Bill, the Committee may have every confidence in them. I simply wish to point out that it is a travesty to suggest that the mere presence in the home of one party to the dissatisfaction of the other party would be a sufficient basis for what is colloquialk known as an "ouster" order. Such an order is now, and will remain under the new law, a drastic order to be regarded as a matter of last resort by the court. It is inconceivable that the courts will regard it otherwise. Certainly the courts will be astute to look for the sort of unscrupulous misuse of the powers provided by the new law which the noble Lord suggested may arise.

In relation to the remaining alterations to the Family Homes and Domestic Violence Bill which are brought about in this Bill, I do not wish to repeat the points already made. I have one regret in particular; that is, that the procedures of the Married Women's Property Act 1882 for determining property disputes between cohabitants have not been preserved in this Bill. It was commented by Dr. Eekelaar of Oxford University, in an article in Family Law this month, that, It is hard to see how maintaining procedures which benefit only lawyers, even those of the Chancery Bar, help the institution of marriage, but political compromise seldom produces rational results".

Lord Simon of Glaisdale

On Second Reading I ventured to deprecate attempts to amend too violently Part III of the Bill on the ground that it has virtually come through a Jellicoe Committee whose conclusions should be generally accepted. Nevertheless, for reasons that will become clear in a moment, I support the changes proposed by my noble and learned friend.

I turn to the comments of the noble Earl, Lord Russell. I have long felt that what history gained, the law lost. It was an astute insight of his at Second Reading—and he repeated it today—that, looking at the law as a whole, cohabitation has now become a status. "Status", in its legal sense, means a condition of belonging to a class of society to which the law ascribes particular rights and duties; capacitors and incapacitors, the capacitors and incapacitors being the more important because, of course, there are many classes of society which enjoy particular rights—for example, the tenant of an agricultural holding. But, in the legal sense, status goes far beyond that. One looks to see that there is a substantial body differentiating that class of society.

The noble Earl was quite right in saying that, as the social security law has developed, though not that alone, cohabitation should now be recognised as a status. English law is not peculiar in that regard. There are a number of systems of law which differentiate between concubinage differentiated from marriage on the one hand and from the denizens of the red light district on the other. Concubinage is a status in those systems, and I am prepared to concede that cohabitation may now become a status under our legal system.

But where I believe the noble Earl has been uncharacteristically ungenerous is in his criticism of those Members in another place who demurred at some aspects of what is now substantially Part III of the Bill. Their fear was that the Bill in its former form would virtually conflate the status of marriage with the status of concubinage. Several of the speeches this evening have gone a very long way down that road. In the end, we have to decide whether we value marriage as a special status or whether we are willing to see it conflated with concubinage, cohabitation or call it what you will. It is because those changes that my noble and learned friends have made seem to me to differentiate the status of marriage from the status of concubinage that I believe they are to be supported.

The Lord Chancellor

I appreciate that Part III of the Bill is in its essential characteristics very like the Family Homes and Domestic Violence Bill in the last Session, in which a number of your Lordships played a most important part in the Jellicoe Committee.

I begin by directing my attention to a point raised by the noble Lord, Lord Clifford of Chudleigh. He suggested that the Family Homes and Domestic Violence Bill had been presented as a consolidation measure and put through a procedure which was appropriate for that purpose. Your Lordships know well that the procedure for consolidation is the Joint Committee on Consolidation Bills. There was no question of that Bill going through any such procedure. It was well appreciated that substantial changes were to be made to the pre-existing law. Your Lordships have only to read my Second Reading speech—for what it is worth—when I introduced the Bill to this House to appreciate that point. If the noble Lord had sat through the discussions in Committee he would have appreciated that even more fully. I believe it is remarkable for it to be claimed that the previous Bill was presented to Parliament as a consolidation Bill. That is not so. Anyone who cares to read the proceedings and the substantial volume of evidence that was received when the Bill was in the Jellicoe Committee will appreciate that.

Viscount Colville of Culross

Hear, hear!

The Lord Chancellor

I am particularly grateful for the support that the noble Viscount has just given. He gave us the great benefit of his expertise as a judge in the detailed consideration of the amendments that were made in the course of our consideration of the procedures that were required in this connection.

The Bill in its previous form was based largely on advice from the Law Commission, but quite substantial changes were made from that. The Bill as proposed by the Law Commission received the support of the Home Affairs Select Committee in another place following a number of hearings. That committee asked that it be introduced into Parliament as quickly as possible. I was not able to do it as quickly as that committee wished. I thought that I had not done too badly. It just shows that one cannot he certain that one has been successful until Royal Assent.

The Committee will know that towards the end of the proceedings in another place on that Bill representations were made to me on the lines described by my noble and learned friend Lord Simon of Glaisdale; namely, that the person reading the Bill might be apt to think that the status of marriage and the status of cohabitation were being too closely assimilated. Of course, both the previous Bill and the present one distinguish between these two. But apart altogether from the changes that I have made, there are very substantial distinctions. In particular, if one party is married to another, those parties will have the rights of occupation by virtue of marriage in the matrimonial home even if they had no other title to occupy that home. That is a right not conferred on cohabitants. That substantial distinction has always been present in this Bill in its various forms and it existed in the law prior to the introduction of this Bill.

It is also important to look at the Bill as previously drafted. To use the references in the present Bill, Clause 31(6)(d) requires the court, in considering what to do in relation to orders of this kind, to consider the nature of the parties' relationship. The clause that I have put in in response to representations made to me, namely Clause 36, simply recognises and emphasises the particular nature of the parties' relationship when they are married. I think that that matter is already implied in paragraph (d) of Clause 31(6). The changes that I had made are intended to make clear, and to get as much consensus on the terms of the Bill as possible, that there are distinctions between those who are married and their rights and those who are not.

I share the regret expressed by the noble Earl, Lord Russell, that my noble and learned friend Lord Brightman is not able to be here. He sat very patiently through earlier proceedings in this Committee in the hope that he would be present when this stage was reached. Unfortunately, the detail in which your Lordships considered the earlier provisions meant that we overtook the arrangements for his holiday before we reached this stage in the Bill. As a result of our earlier dletailed consideration, we are therefore without the help of his presence this evening. I am sure we all hope that he will enjoy his well-earned holiday, among other things because of the distinguished way in which he chaired the committee on the previous version of this Bill. Similarly, I much regret that the noble Lord, Lord Habgood, is, by virtue of his health, unable to be with us tonight. I am sure we all hope that he will soon be fully restored to health and will be able to join us at later stages of the Bill.

The amendments to which the noble Earl, Lord Russell, has spoken affect provisions that I have put in to deal with representations that have been made to me. One's understanding of the parliamentary process is that, while one has one's own views, it is wise to do what one can to accommodate the views of others, in so far as that is consistent with the principles for which one is looking, in order to attain the maximum consensus on the finished product. So far as I am concerned that is what I sought to do in relation to this matter. Therefore, I have no difficulty in accepting that I have moved forward, as it were—perhaps not very far but a little distance—from the position that I personally had reached at the end of our proceedings on the previous Bill.

I do not believe—I may be wrong—that the amendments introduced by the noble Earl, Lord Russell, would tie in or be supported by a good number of the observations made by the noble Lord, Lord Clifford of Chudleigh. I do not feel that these amendments are related to a substantial part of the contribution that he made. I shall direct myself, at least for the moment, to the amendments which were introduced.

The first amendment, Amendment No. 184. is a restriction in the case of cohabitants who have no entitlement to occupy the property to the overall length of time that they can receive the benefit of an occupation order. There are two distinctions there. It concerns not only a cohabitant but a cohabitant who has no other entitlement to occupy the property. A cohabitant who has an entitlement to occupy the property is not affected by this measure. So it concerns a cohabitant who has no entitlement to occupy the property. I have inserted a limit to the overall length of time. The limit in the Bill is six months, renewable only once. The amendment would allow indefinite renewals at the discretion of the court, which is the position for non-entitled spouses. I believe that an occupation order in favour of a person who is not entitled to occupy the property should essentially be to provide short-term protection for the victim while that person seeks alternative accommodation.

I am sure that the noble Lord, Lord Meston, will be able to confirm or correct me, but my understanding of the matter is that the practice is to make those orders on the basis of a three-month period. They are intended as short-term measures to deal with an emergency. Looking at the practice in the light of the concerns expressed, I felt that it would be sufficient to provide a year in order to give the short-term protection for the victim while that victim seeks alternative accommodation to which these provisions are directed.

It is important to recognise that during that time a person who is entitled to occupy the property may be prevented from doing so. So one has to think about the other person who has a right by virtue of something other than these rights; in other words, something in the nature of a contractual or property right in the property. That person may be prevented during that time from occupying the property. In the case of marriage, which has involved the commitment of marriage, I believe that there may be instances in which the court feels that it is just to make a longer order in favour of the non-entitled spouse. But those cases must be left to the discretion of the court.

The second change that I have made in these clauses was to the operation of the balance of harm test. There was specific opposition to the suggestion that the court should be under a duty to grant an occupation order with a restriction or exclusion provision in favour of an unentitled cohabitant. In placing the court under a duty to ask itself the question set out in Clauses 31 and 33 of the Bill, I believe that we have ensured that the question of harm to the parties and to relevant children will he fully considered by the court. However, I have accepted that in this particular situation it would be wrong to fetter the court's discretion to act in the way in which it sees fit having regard to all the circumstances of the case. Therefore, we simply give the court in this situation a discretion to act in the way that it sees fit in the light of all the circumstances.

Finally, notice has been given of the wish that Clause 36 should not stand part of the Bill. The noble Earl dealt with that matter and it might be as well for me to deal with it now. That clause instructs the court. when making an occupation order in favour of the cohabitant, to have regard to the fact that the parties have not given each other the commitment involved in marriage—I take that to mean the commitment to one another that they are married. They have not done so. They may have given plenty of other commitments but not that particular one because they are, in fact, not committed to marriage.

As I have already outlined, I believe that cohabitation and marriage are different—as my noble and learned friend Lord Simon of Glaisdale pointed out—and it is right that the court should consider that when making orders. After all, all I am doing in this clause is to make express what in any event is required because, in the Bill that was approved, the nature of the relationship is something that the court has to consider. I simply point out, in order to make it clear to those who felt that it was not so clear as it might be, that that is the situation and the court has to have regard to that.

However, the specific effect in each individual case is something which I feel is best left to the discretion of the court as each case comes before it. There is no suggestion of the precise consequence of examining this matter that would be involved for the court. All that it has to do is take that into account. What would be the precise effect of taking it into account in any particular case is a matter on which the court itself will make up its mind.

I believe that it is important that we should do our best to secure a Bill which is as acceptable as we can make it to everyone who has taken a sufficient interest in it, subject to the principles that I seek to achieve. Therefore, I hope that the Committee, though I quite understand the concerns expressed about them, may feel, in the interests of securing a Bill which will have so far as I can judge almost universal acceptance, that these changes may be allowed to stay in the Bill.

Earl Russell

I am most grateful to the noble and learned Lord for that very full and careful reply. Before I leave the amendments, perhaps he will forgive me for raising just one point on which I should like to hear a little more. I have not heard—I may have missed the explanation, and, if so, I am sorry—why he decided that he should not use the expedited procedure under the Married Women's Property Act for cohabitants. I should be very grateful to hear that before we leave the matter.

The Lord Chancellor

The reason that I did not mention the point is that I do not feel that it is expressly covered in these amendments. In any case, the answer is simply that the way in which it was expressed in the Bill suggested perhaps an unnecessary equivalence with married women. It uses the Title of the Bill. It is a purely procedural matter. One way of doing it is to express the procedure, which is the procedure of the Married Women's Property Act, without in fact using the name of the Act to describe procedure that would be open in appropriate cases to people who might not be married. It is purely a procedural provision. It is certainly possible to reach that result in a number of other ways without, as it were, by reference incorporating provisions from an Act of Parliament. In other words, the court itself has plenty of powers to regulate its procedure without the necessity of that express provision.

Originally, I thought that it was a good idea. But, having looked at the matter, I concluded that it was not necessary to do it that way. The consequence of doing it that way was that some, at least, who read the Bill took the meaning from it that I have just suggested. That was an unnecessary confusion. I believe that I have been able to remove that confusion. In due course, the procedures which, in any case, are subject to change, might well be appropriate procedures for those cases and may well be introduced as soon as we can do it.

Earl Russell

I am most grateful to the noble and learned Lord and indeed for the whole of that very careful reply. I entirely agree with what he said about the Jellicoe procedures. I was not able to be a Member of that Committee. I have read the Minutes of Proceedings and Evidence which indicated that very careful consideration indeed had been given to that Bill.

With regard to the ouster orders, the noble and learned Lord made a very serious case. Anything that I say this evening is, of course, provisional, because I must read very carefully in Hansard what the noble and learned Lord said. But if I understood him correctly, he said that the discrimination between the married person and the cohabitee was not on any moral ground but because there was a difficulty in establishing any title to the house in those particular cases and that he was allowing marriage to create a presumption which was not being given to cohabitees simply because the situation was clear. If that is a fair paraphrase of what the noble and learned Lord said, although I would not necessarily have written the Bill that way myself, I can understand why he did it and I take that argument seriously.

The question of the Married Women's Property Act and Clause 36 raises the issue of equivalence. Here I think that there is a deeper disagreement between us. I entirely understand that it is proper for anyone in a ministerial position to give way to representations that are made—after all, I am asking the noble and learned Lord to do that, so I can hardly say that it is improper that he should do so—but I ask him to bear in mind that on this matter he is receiving pressure from both sides and therefore has a certain degree of discretion about to which side he gives way, on which points, in which ways and on what principles.

Of course, I accept what the noble and learned Lord, Lord Simon of Glaisdale, said and that marriage and cohabitation are not the same thing. I am extremely grateful to the noble and learned Lord for his recognition that cohabitation is becoming, or has become, a status in law. However, if one is to distinguish between them, a further question arises of whether the distinction should he made in matters concerning the Queen's peace and protection from physical violence. I might have a good deal less objection to a distinction being made in, for example, testamentary dispositions. My argument in this case is that the duty of protecting people's physical safety is a higher duty than that of having recognition of any particular form of legal status. In fact, it is a matter of priorities.

We shall have to discuss this matter further—probably outside the Chamber as well as within it. Meanwhile, I thank the noble and learned Lord the Lord Chancellor very warmly for the care that he has taken and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 [One cohabitant or former cohabitant with no existing right to occupy]:

9 p.m.

Lord Irvine of Lairg moved Amendment No. 184A: Page 22, leave out line 24.

The noble Lord said: In moving Amendment No. 184A, I should like to speak also to Amendments Nos. 184B and 184C which also stand in my name. All have a common purpose, which is to protect the victims of violence.

Before explaining the purpose of the amendments, I desire to make a number of observations of a more general character. This is a time, even as late at night as this, for some straight talking. An important issue is at stake in relation to these domestic violence provisions which transcends the particular provisions. It is how to secure that appropriate Law Commission Bills are put through our Jellicoe procedure, a fast-track procedure, with all-party agreement and with all the salutary co-operation—

Lord Simon of Glaisdale

I hope that the noble Lord will cast a benevolent eye on the schedules that we discussed last week which were based on Law Commission Bills.

Lord Irvine of Lairg

Law Commission Bills naturally find their proper place in legislation which is brought before your Lordships' House and the other place. However, I have to say that the noble and learned Lord's propositions, which may have had a great deal of merit, did not find a natural place in this Bill.

My point is this: an important issue is at stake when we are seeking to use our fast-track procedure, the Jellicoe procedure, with all-party agreement and with all the salutary co-operation that that involves between the parties. I am sure that the noble and learned Lord will confirm that that co-operation extends to smoothing the passage of such Bills through the other place which is perhaps a rather more political place, perhaps I should say a rather more "partisan" place, than this House. That co-operation is put at risk for the future when the Government allow an agreement between the parties, reflecting not a party agreement but the actual agreement of the overwhelming majority of all the relevant parties in both Houses, to be blown off course by an irrational reaction on the part of a tiny unrepresentative minority of the governing party in the other place. In this case, it was a tiny and unrepresentative minority which was trying to claim a spurious moral high ground for party political reasons. If that kind of unrepresentative minority is yielded to, I have to say that that is the way to imperil the making of agreements which will allow such Bills to go through the Jellicoe procedure in the future. Assuaging uninformed minorities does not facilitate all-party agreements which alone can be the foundation for utilising the Jellicoe procedure in the future.

My three amendments are designed to restore the full force of the previous Bill, before concessions were made to appease the uninformed minority in the other place. I can only suppose that the attitude of that uninformed minority was based upon what a tabloid newspaper, the Daily Mail, claimed about the Bill and not on what the noble and learned Lord's Bill provided. That minority obviously thought, because that is what they said, that the Bill for the first time would afford legal protection to mistresses and somehow, as a result, undermine the institution of marriage. Quite how a freedom to be violent to one's partner upholds the institution of marriage remains unexplained.

Anyway, that uninformed minority was 20 years out of date. The Domestic Violence and Matrimonial Proceedings Act 1976, as the noble and learned Lord is well aware, gave protection both to spouses and to unmarried partners against domestic violence. That protection was underpinned by a power in the court to make an ouster order against the violent party.

In fact, that power is used very rarely by the judges up and down the country, but the existence of the power, and the threat of its use, is a potent weapon in the hands of the courts to calm the domestic scene, to make it plain that our courts will not tolerate domestic hooliganism. That hooliganism damages victims, inflicts misery on children, and, if unpunished, feeds in the perpetrators an appetite for further violence.

Before I move the amendment, it may be of interest to the Committee to know how the law at present works in practice. A partner complains of molestation and the court is asked to consider the complaint. The usual upshot of the first court hearing before the district judge in the county court will be an adjournment of the application on the basis that each party will give undertakings not to molest the other in the future, usually without an admission of any previous molestation.

In the great majority of cases that is the end of the matter, but in a small number of cases the parties come before the court again, breaches of undertaking arc alleged and, once established, the court will impose an injunction against violence. If that is disobeyed, then the court will either make an ouster order if co-habitation is continuing or, if the violent partner has already left, the court could commit to prison. In practice, the court will usually suspend the order on condition of future good behaviour. It is only when all those remedies have been tried and failed that the violent partner is at risk of imprisonment.

I take a minute or two to say that so as to make what is my point, which is to call attention to the fact that great latitude is already given to the persistent aggressor. From these Benches we see no reason why those aggressors should be indulged further.

Amendments Nos. 184A and 184B are designed to restore the Bill to its original form, with which the noble and learned Lord previously agreed, in one very important respect: to restore the balance of harm test in all cases. Under Clause 28(7) the test for making an ouster order in favour of a partner with a right of occupation against a partner without any such right—for example, against a partner with no legal interest in the property—is to make the order if the order will protect the applicant or a child from significant harm, but not to make that order if as great or greater harm will be caused to the other partner or a child from the making of the order. That is what called the balance of harm test, to which the noble and learned Lord has already referred. What it requires is for the court to make a detailed appraisal of the consequences of making or abstaining from making the order.

Neither the Law Commission nor this place in its previous deliberations suggested that there was anything wrong with the balance of harm test or that it should not equally be applicable in cases where the victim of violence had no strict legal right to occupy the property.

The new provisions in Clause 31(8) draw a distinction between orders made in favour of those with an entitlement to occupy and orders made in favour of those with no such entitlement. Thus, the balance-of-harm test, if satisfied, must result in orders in favour of those with rights in the property. But even if the balance-of-harm test is satisfied in favour of those without any legal rights in the property, the matter is purely within the discretion of the court.

Under the Law Commission's proposals, if the court were of the view that the balance-of-harm test was satisfied, the court had to make an order in favour of the non-entitled applicant—that is, if more harm would be caused to that applicant or any child than would he caused by not making the order.

Despite what the noble and learned Lord said in his response to the previous amendment, the plain fact is that the test for non-entitled applicants is being deliberately changed to their disadvantage. The courts will be bound to give effect to the different test in their case and to hold that they have a discretion to withhold protection from a non-entitled partner, even though the balance-of-harm test is satisfied.

That severely weakens protection for the abused because it consigns those already vulnerable, because they lack property rights, to a second-class protection. It cannot be said—and I ask the noble and learned Lord to declare whether he says—that the two different tests will make no difference in practice. If that is what is to be said, why make the difference? The purpose of Amendments Nos. 184A and 184B is to give a quality of court protection for all victims of domestic violence.

Amendment No. 184C deals with a related but distinct subject. It is aimed at restoring the provisions in the previous Bill which here too have been altered as a sop to the objectors but in a way that I say opens up the dangerous gap in the protection that the court may confer on victims of domestic violence. The previous provisions gave the flexibility of renewing protection for as long as was necessary—I repeat, as long as was necessary. Of course the court would need to be satisfied that the continuance of its ouster order was necessary to protect the victim and any children. Typically, the court might make an ouster order for, say, three months. The reasoning would be that in a domestic crisis parties need time to reflect on and to take steps to deal with their situation. If for good reason the three months were not enough, under the old provisions—the provisions which first appealed to the noble and learned Lord—the court had the flexibility to continue its protection as long as it was needed.

Ouster orders in favour of non-owners may be for six months only with the possibility of one further extension of six months but no further extension whatever the circumstances. It may be that in many cases 12 months would be adequate; but I say that in this sensitive jurisdiction, where the facts of every case vary so infinitely, it is unhelpful to tie the court's hands to arbitrary time limits. The judges should be trusted.

I have no doubt that cases will arise in which acute difficulty will be found in rehousing the abused party or where the couple may be elderly, ill or even terminally ill. If alternative accommodation does not become available to the abused partner within the 12 months under the Bill in its present form, the court is literally powerless to prevent that individual being turned out on the street.

I dare say that there can be sops to the uninformed which may not much matter in practice, but I have to say that this one does matter: it is repugnant to justice. Those who are in favour of the changes as regards the previous provisions—as the noble and learned Lord recommended them and, indeed, believed in them—which are brought about, so we are told, to strengthen the family, have a duty to explain how that object can conceivably be arrived at by insisting on this gap in the court's protective powers. I suggest that that gap would leave the abused, and the uniquely vulnerable, homeless. I beg to move.

Lord Meston

While I agree with everything just said by the noble Lord, Lord Irvine, about the benefit of the proposed amendments, I would question his description of the Jellicoe procedure as providing a fast track. The perception of those of us who served on the Committee on the previous Bill must be that it was a rather slower track than might have been afforded by the normal procedures of this Chamber. It enabled the predecessor to Part III of the Bill to have detailed consideration, the Bill itself being the product of a Law Commission report which, in turn, was the result of detailed consultation. The impression that one gained was that the Jellicoe procedure in this Bill, as with previous Bills, was in fact to enable the fast track to operate not in this Chamber but in another place.

The Lord Chancellor

Perhaps I may begin with the notion of a "fast track". It is apt to be misleading, especially to those who have not engaged in the procedure for themselves. As the noble Lord, Lord Meston, said, far from being a fast track, it is a track on which a much more detailed examination of the technicalities of the proposal are possible than would be the case under the normal procedures which apply in this Chamber.

As regards the other place, my understanding—and I speak subject to correction by those who know more about another place than I do from personal experience, as I never had the privilege of such experience—is that the procedure was by a Second Reading Committee. The amount of discussion that one can have there depends on the nature of the subject matter. Moreover, so far as concerns the Standing Committee procedure, that also permitted the discussion of a number of matters. The ultimate procedures were the same. It is a question of whether matters are dealt with on the Floor of the House on Second Reading or otherwise; but it is not necessarily the case that one procedure produces a result more quickly than the other. Indeed, the Bill that we considered last Session failed ultimately to reach the statute book. Therefore it would perhaps be inadequate to describe it as a fast track procedure to the statute book.

I believe that there are some problems as regards the amendments as currently drafted. For example, the proposed subsection outlined in Amendment No. 184B refers to subsection (4) and not subsection (5) of the clause. That means that it would apply only where the applicant was not in occupation. I do not think that that can be the intention. I shall speak about the principle of these matters. First of all, the changes that I made apply only to non-entitled cohabitants; they do not apply to non-entitled spouses, for the obvious reason that the situation is different.

I should make it plain that, under this Bill as now drafted, the court must, before deciding whether to make an exclusion or restriction provision, consider the balance of harm that will be caused to the parties and to any relevant children. It is only in relation to that matter that this point arises. I believe that the intention is to replace these questions with a balance of harm test similar to the one in Clause 30, which places the court under a duty to make such a provision if it is satisfied that the significant harm to the applicant or relevant child if the order is not made will be as great or greater than the significant harm to the respondent or relevant child if the order is made. I should point out that I believe the amendment has, as I said, a question in it as regards whether it applies only if the cohabitant was not in occupation. That is something that the noble Lord may wish to consider.

I believe that, in placing on the court a duty to ask itself the question set out in Clause 31 of the Bill, we have ensured that the question of harm to the parties and to relevant children will be fully considered by the court. The change I have made is to accept that it would be wrong in the particular circumstances of a non-entitled cohabitant, against a person who has rights in the house, to fetter the court's discretion to act in the way it sees fit having had regard to all the circumstances of the case. I am not saying that that would always result in precisely the same result as if the court had a duty to do that—an obligation on a court would he different. However, I am saying that, in the special circumstances to which these provisions apply, it is right that the court should have a discretion. I accepted representations made to me by those who are elected representatives of constituents in the other place who had considered these matters and raised them with me. I believe that the balance that we have in this provision, and in the circumstances to which it applies, is right.

Amendment No. 184C—the last one to which the noble Lord spoke—seeks to change the period for which an occupation order can be made in favour of a non-entitled cohabitant or ex-cohabitant under Clause 31. Clause 31 as currently drafted provides that an occupation order can be made for a maximum period of six months and that this period can be renewed once. As I have already discussed, this contrasts with a situation for an ex-spouse, where the order may be renewed for an indefinite number of times at the discretion of the court. Instead of treating non-entitled cohabitants in the same way as non-entitled ex-spouses, they are treated in the same way as applicants who have a right to occupy the property by virtue of a beneficial estate or interest, or by virtue of matrimonial home rights. I believe—this was the situation under the Family Homes and Domestic Violence Bill—that an occupation order for an entitled occupant can serve a different purpose than for a non-entitled occupant. With the former it might be the case that the occupation of the home requires regulation in the longer term. Therefore I believe that the length of orders is best left to the discretion of the court.

In the case of the second group, the primary purpose—I think the authorities demonstrate this—is to provide the applicant with a short-term protection and accommodation while suitable alternative accommodation is sought. That is on the basis that the applicant is without any other rights in the home and that the other party is the person who has the rights. It must be remembered that it is a serious step to remove someone who would otherwise be entitled to occupy the home for the benefit of someone who would not he so entitled. I therefore think it appropriate that such an order should be finite and subject to review in the way this clause presently proposes. I think it is right that as a Bill goes through Parliament representations are considered, and in so far as those representations may make improvements on the balance and presentation of the Bill, they should be accepted. It is on this basis that I invite the Committee to go along with the Bill as it is now drafted.

9.30 p.m.

Lord Irvine of Lairg

I am bound to say that the noble and learned Lord's observations about the fast track procedure were, I respectfully suggest, of a debating nature and not substantial. In using the expression "fast track" I was not seeking to diminish the quality of the Jellicoe procedures; far from it. The Jellicoe procedures involve the taking of expert evidence and the consideration of it, and can be regarded, therefore, in many senses as superior to the procedures which in the ordinary way of debate we follow on the Floor of the House.

First, "fast track" is used in the sense that it is a different track—a track which is a means of avoiding the allocation of what is scarce prime time for business on the Floor of the House. By means of this salutary Jellicoe procedure, we can get legislation through which we might not have been able to do otherwise.

Secondly, the procedure is appropriate for legislation which is free of the party political disputation that attends Bills taken on the Floor. Therefore I did not use "fast track" in the sense of any inferior legislative procedure. I used it in the sense of a beneficial and different procedure by which urgent, important legislation could be got through for which otherwise time would not be found.

The Lord Chancellor

I entirely accept what the noble Lord has just said. However, not everyone is as well informed about our procedures as the noble Lord. I think it is important that it is understood that although between us we speak of it as a fast track, it is in fact a different track from the normal but a track which permits very detailed consideration of these matters, as the noble Lord said. I believe I am right in saying that the phrase was used earlier in our debates (although not by the noble Lord) in a way which at least gave me the impression that it was considered as some speedy procedure under which full consideration was not available.

I know that the noble Lord understands full well what the procedure is, having sat through one such procedure himself at quite considerable length.

Lord Irvine of Lairg

I am grateful to the noble and learned Lord. I simply had the fear that it might be misunderstood both in your Lordships' House and elsewhere that by using the expression "fast track" I was in some sense suggesting that the Jellicoe procedures were speedy and therefore inferior to the procedures that apply on the Floor of the House.

I used the word "fast" in the sense that the procedures secured a more prompt passage of a Bill than would otherwise be the case, because it was a law reform Bill. As experience commonly shows, time is not found available in a complicated and burdened legislative programme for what is regarded as pure law reform.

On the questions of detail which the noble and learned Lord raised in relation to my amendments, I shall certainly read? Hansard with care and consider what he says. We may have to revisit the matter on Report. My anxiety is that we have received no signal whatever that the noble and learned Lord was at all willing to meet us on the points that we make. I hope that that is not so.

I have difficulty in accepting that the noble and learned Lord really thinks that the alterations to the provisions in the previous Bill, now incorporated into this one, are improvements. If he thought that the new provisions which he has brought forward are right, why did he not propose them in the first place? I have difficulty in accepting the proposition that he is persuaded by the arguments of the sources from which the initiative for the changes emanated. However, I have a clear appreciation that the noble and learned Lord is constrained to say certain things, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 184B and 184C not moved.]

Clause 31 agreed to.

Clause 32 [Neither spouse entitled to occupy]:

[Amendment No. 185 not moved.]

Clause 32 agreed to.

Clause 33 [Neither cohabitant or former cohabitant entitled to occupy]:

The Lord Chancellor moved Amendment No. 186: Page 24, line 13, after ("parties;") insert— ("( ) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child;").

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clauses 34 to 55 agreed to.

Clause 56 [Meaning of "cohabitants", "relevant child" and "associated persons"]:

The Lord Chancellor moved Amendment No. 187: Page 34, line 43, leave out ("(I)(f") and insert ("(3)(f)").

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 [Interpretation of Part III]:

Lord Irvine of Lairg moved Amendment No. I 87A: Page 35, line 26, leave out ("in relation to a child").

The noble Lord said: The purpose of the amendment is to draw attention to what I hope is a sensible question in relation to the drafting part of the Bill on which I desire the assistance of the noble and learned Lord. My basic objective is to ensure that victims are protected against all aspects of domestic harassment.

A distinction is drawn in the interpretation clause between the harm which must be established as having been suffered by an adult partner and that suffered by a child. Perhaps Members of the Committee would turn to page 35, lines 19 to 24. In the cases of both an adult and a child "harm" means "ill-treatment". However, a few lines further down the page, "ill-treatment" does not mean the same for both. In the case of a child "ill-treatment" means, forms of ill-treatment which are not physical", but not so in the case of an adult. The issue that I desire to put before the Committee, and on which I invite the assistance of the noble and learned Lord, is that it appears that non-physical ill-treatment does not qualify as "harm" in the case of adults.

If I am right in that interpretation, surely the Bill has to be wrong. Why should a partner be entitled to switch off the central heating, leave on the lights all night, send hate mail or, as in one case about which I was told, keep revving up the motor car in the driveway all night to rob his partner of sleep. Another fairly typical type of harassment, sadly, is stalking one's partner, or making nuisance, or abusive phone calls to the partner's place of work.

If I am right in my reading of this interpretation clause—and I shall be happy to be told that I am wrong—I find it hard to understand why it is that non-physical ill-treatment is automatically excluded from the court's protection for adults but not for children. That exclusion does not foster good family relations or good family life. On the contrary, if I am right about it, it will be seen as signalling a parliamentary lack of concern for the plight of those who are subjected to any of the many forms of mental torture that human beings, sadly, from time to time devise for one another. I beg to move.

The Lord Chancellor

The effect of this amendment is to define "ill-treatment" in Part III of the Bill in relation to adults. Currently a definition is given only in respect of children. It was suggested by the noble Lord that a possible construction of the clause as drafted would be to exclude ill-treatment that was not physical from the definition in relation to adults, and in that respect would afford less protection than the current law.

I do not accept that that is the case. We made the decision to define "ill-treatment" in relation to children specifically because of the question of sexual abuse. I wanted to put beyond doubt the fact that sexual abuse was ill-treatment. Sexual abuse is widely understood in relation to children. It can include any form of sexual contact. That is of course not the case with adults. It could also include non-physical abuse at times; for example, adults exposing themselves to children could be abuse. The decision not to define "ill-treatment" generally was made because there are many things that could constitute ill-treatment. To attempt to define them could result in an unnecessary and unwarranted fetter on the court's discretion. What will be ill-treatment will vary from case to case, but it is not my intention that some form of physical ill-treatment should be a pre-requisite. I hope that approach commends itself to the noble Lord.

9.45 p.m.

Lord Irvine of Lairg

I shall read with care the brief answer which the noble and learned Lord has given. It appears to me, leaving aside the words "includes sexual abuse" in the definition of ill-treatment in relation to a child, that the Bill, on its proper construction, includes, other than sexual abuse, forms of ill-treatment which are not physical. If that is expressly ill-treatment for a child, but not for an adult, it appears to me that forms of ill-treatment which are not physical would be held by a court not to qualify as ill-treatment in relation to an adult.

If that is not the noble and learned Lord's intention, for the life of me I cannot see why he is unwilling to yield on that point. At the very lowest he must regard that as an ambiguity because of the contrast in treatment of adults and children, and make it plain. I invite him to reflect on that. Meanwhile, in the spirit of this Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clause 58 [Rules, regulations and orders]:

Lord Simon of Glaisdale moved Amendment No. 188: Page 36, line 36, after ("under") insert ("section 4(5) and").

The noble and learned Lord said: In moving this amendment, I shall speak to Amendment No. 189, the two being linked. We are concerned with parliamentary control of subordinate legislation. Clause 58(3) proposes that all statutory instruments, rules and regulations under this Bill shall be subject to the negative procedure only. I am very glad that the noble Earl, Lord Russell, has put his name to this amendment because I very much_prefer marching shoulder to shoulder with him rather than be at horns locked.

We propose that orders made under Clause 4(5) shall be subject to the affirmative procedure. The Delegated Powers Scrutiny Committee, in. its first report of this year, accepted the negative procedure as appropriate generally, but signalled an exception in its significant way to orders under Clause 4(5). Rather than take the Committee right through Clause 4, and the Delegated Powers Scrutiny Committee having put the matter so succinctly, I shall read what it says: Clause 4(3)(b) imposes a time limit on applications for a divorce or separation order. The time limit is six months from the earliest time when an application for a divorce order could have been made by reference to the statement on marital breakdown. Clause 4(5) allows the Lord Chancellor to amend Clause 4(3)(b) by varying the time limit, and Clause 58 provides for this to be done by negative procedure. Clearly this is a Henry VIII provision and"— This is in bold type— the Committee will wish to consider whether this provision is so important to the scheme of the Bill that affirmative resolution procedure is required. That is what the Scrutiny Committee had to say.

The reason for the time limit, as I understand from the debates we had on Clause 4, is, on the one hand, that there should be enough time for the parties thoroughly to consider their position, including, we think, time for reconciliation. On the other hand, stale statements, possibly quite outdated, should not he left hanging over the proceedings to the detriment of the parties and their children. When we debated this matter, different periods were suggested and argued over. I am not going to read the whole debate. What it amounts to is that the Bill proposed six months, the noble Lord, Lord Meston, proposed 12 months and the noble Baroness, Lady Young, proposed 18 months.

I think my noble and learned friend, reviewing these three contentions, thought that probably there was much to be said for 12 months, and he said he would consider an amendment on those lines to he brought forward by him on Report. It is a matter of considerable importance and your Lordships may well think that it should be on the face of the Bill that Clause 4(5) gives a Henry VIII power to alter that figure in the light of experience. In my submission, if it is not to be'primary legislation, it should clearly he under the affirmative procedure. Your Lordships know well the advantages of that affirmative over negative procedure: principally that the Minister comes forward himself and lets Parliament know what are his reasons for making the order. There is also the serious question in another place that negative orders are often not reached, and I imagine that would be worse under the Jopling proposals which are now in force. I think the noble and learned Lord the Lord Chancellor went a long way to meet that view.

In relation to the three periods which are to go on the face of the Bill, my noble and learned friend said that it was suggested that that should be done by an instrument in a slightly different form from the one that he proposed. I take it that the one which my noble and learned friend proposed is the form in the Bill; in other words, the negative procedure. By "a slightly different form" I hope that he meant the affirmative procedure. At any rate, being perennially optimistic, it is in that spirit that I beg to move.

Earl Russell

I want to say only that I am happy to support Amendment No. 188. I share the pleasure of the noble and learned Lord, Lord Simon, that on this occasion we are on the same side. The point he made about the difficulty of reaching negative instruments in another place is a serious one, especially if it is only my party which wishes to challenge them.

The Lord Chancellor

It gives me considerable pleasure on this occasion to find myself marching also in the same direction as my noble and learned friend Lord Simon of Glaisdale. I tried to hint at that in the passage he summarised; I make it express now. I agree with his amendment in principle and shall bring forward an amendment on Report to give effect to it.

Lord Simon of Glaisdale

There is nothing to be said to that except to offer an expression of profound gratitude. I am obliged to my noble and learned friend. That being so, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 189 not moved.]

Clause 58 agreed to.

Clause 59 agreed to.

Clause 60 [Short title, commencement and extent]:

Lord Coleraine moved Amendment No. 189A: Page 37, line 3, at end insert— ("( ) Part I of this Act, other than section 8 and paragraph (b) of section 2(1), shall come into force on 1st January 1997.").

The noble Lord said: Amendment No. 189A seeks to probe a little further as to why my noble and learned friend feels that the substantive changes to the law of divorce should be deferred until the completion of the pilot projects and also as to when he considers the pilot projects will be completed. Its effect would be to provide that, with the exception of the information-providing sessions, the substantive reform of the divorce law—that is to say, the statement of marital breakdown, the year for reflection and consideration and the completion of the arrangements for the future before the making of the divorce order—shall be brought into effect before completion of the pilot projects.

At Second Reading, I asked my noble and learned friend a question in these terms: I wonder whether my noble and learned friend has decided, and can tell the House, when he anticipates that the provisions for no-fault divorce and the year for reflection which are central to the Bill will be brought into force. Will it be one year, two years or three years?"—[Official Report, 30/11/95; col. 724.] My noble and learned friend kindly replied to me by letter on 19th December, as follows, You referred to the pilot study which I plan to set up to monitor and test the new proposals before full implementation. I consider this necessary because some aspects of the proposals are untried in this country, such as the information sessions, and a number of options are possible for delivery of mediation services. The pilot study will also enable the Legal Aid Board to develop and test standards of quality assurance and monitoring of these. We are still at a very early stage of planning for all aspects of the pilot study. It is therefore not possible at this stage for me to give you any indication of when I would envisage the new proposals coming into force".

I turn to the debate initiated by the noble and learned Lord, Lord Archer of Sandwell, on 22nd January of this year. That debate related specifically to the information sessions. On that day, at col. 832, the noble and learned Lord asked my noble and learned friend whether the operation of the Bill was to be postponed until the pilot schemes had operated and the results were known. At col. 837 my noble and learned friend replied: My present view is that the Bill, with its new provisions, should not come into force until the pilots are concluded. Obviously I am open to persuasion as the Bill proceeds, but the information session is so fundamental to the whole idea that it is wise to have it in place, with the proper regulations, before the grounds of divorce set out in the Bill become effective law. Later, at col. 839, the noble and learned Lord, Lord Archer of Sandwell, expressed relief to hear that at that moment it was not my noble and learned friend's view that the Bill should be brought into full force before the completion of the pilot schemes. He asked my noble and learned friend how long that was likely to be. In the same column, the reply of my noble and learned friend was: I believe that something in the order of two years is reasonable for testing out the information-giving methods which we wish to use.

My noble and learned friend did not reply as to the completion of the pilot project on the provision of mediation services. Perhaps I may ask my noble and learned friend whether he now has any better advice as to when he expects to complete the full pilot project process. The noble and learned Lord, Lord Archer of Sandwell, drew attention to the fact that, As a lawyer—and I am sure that the noble and learned Lord will understand my thinking—I am always reluctant to legislate by having a statute in limbo for too long a period of time. In the best of all possible worlds one would wish to have the information-providing service and the full mediation provisions in the Bill before it was implemented. But in this case we are dealing with the replacement of what is, we are all agreed, bad law with what is, we are all agreed, better law. In those circumstances, I should have thought that there was a strong case for bringing the substantive changes into effect sooner rather than later, not letting them hang in limbo. I believe that the completion of the pilot project would be more easily and satisfactorily effected if the new law were in force, especially in regard to mediation. It might be very difficult to do justice to the mediation services in the pilot project in the context of the existing quickie divorces. I beg to move.

10 p.m.

Earl Russell

The noble Lord, Lord Coleraine, produces an argument which at first is extremely seductive. He says that good law is to replace bad law and therefore it should be introduced as soon as possible. That argument must have force. On the other hand, I do not believe we always realise how much work is involved in the introduction of a major Bill. I refer to the amount of reorganisation, redeployment, testing and consideration of cases which must take place. I and my noble and honourable friends spend a great deal of time calling for the Government to take a little longer over the implementation of projects. In the light of that, I believe that I should be guilty of inconsistency if I supported this amendment, though I see its attractions.

The noble and learned Lord knows that, though I am sympathetic to many of the basic principles of the Bill, I have anxieties about the process of mediation, which will be engaged in very sensitive areas and will need to he done very carefully. The fact that he has provided these pilot studies goes a long way to alleviate that anxiety. I am very glad that he has done it and rather hope that he will not change it.

Lord Archer of Sandwell

Let me first apologise to the Committee because I was not in my place at the outset of these debates. It is perfectly true, as the noble Lord, Lord Coleraine, said, that I was in two minds about this matter in the earlier debate. On the one hand, I was relieved to hear that it was not proposed to implement the provisions of the Bill until the pilot schemes had been completed. On the other hand, I expressed some hesitation about the idea of a statute operating in limbo. I must say that I am persuaded by the argument just enunciated by the noble Earl, Lord Russell. This is an important matter and it is important to get it right before it is let loose on the public.

I take the point made by the noble Lord, Lord Coleraine, a few moments ago that it might, in a sense, be easier to carry out one of the pilot schemes if there were a substantive law in place on which it could bite. But it seems to me that, on balance, that might be a dangerous way of doing it. To have a substantive law in place and try to make it work before it has been possible to see the results of the scheme and assess them on the whole might endanger the whole scheme and bring the law into disrepute. So, for what it is worth, I take the view that, on balance, it would be better not to implement the substantive law until the pilot schemes have been assessed.

The Lord Chancellor

This is an important question. I am certainly entirely in favour of bringing this legislation, assuming that it reaches the statute book, into force as soon as reasonably possible. But it is important to make the necessary preparations. My experience in relation to the Children Act confirms that that is a good viewpoint. The Children Act was on the statute book for something like two years before it was implemented. That period was not spent in idleness, as those noble Lords who work in this field know. We did a lot of work. Various departments—the Department of Health, my department and the Judicial Studies Board, as well as local authorities and so on—had to engage in detailed preparation. The Act was all the better for that detailed preparation in its ultimate working.

I regard it as vitally important that the information session should be in place and working. The interval between getting the information and starting the divorce process is an integral part of what I should like to see. I want to be as sure as I can that the arrangements for information sessions are as good as we can make them before I have brought into effect the substantive provisions.

The mediation provisions are somewhat different in the sense that, as my noble friend said, it is much easier to envisage mediation against the background of the new law than against the background of the present law. That is an important point. On the other hand, I want to be sure that mediation provisions are reasonably well in place. On the best view that I can take at the moment of what is likely to happen, the kind of estimate that I gave in answer to the noble and learned Lord, Lord Archer of Sandwell, is the best that I can give. My noble friend can be assured that I would wish to bring the statute into operation as soon as is reasonably possible. But I believe that at least the information sessions and a good deal of the arrangements in relation to mediation should be in position before that happens, for the reasons that I sought to explain.

Lord Coleraine

I understand that my noble and learned friend intends his reply to the noble and learned Lord, Lord Archer of Sandwell, to apply to the whole project and not just to the information-providing session. I am grateful to my noble and learned friend for the clarity with which he has answered my amendment and to other noble Lords who have spoken. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 60 shall stand part of the Bill?

Lord Simon of Glaisdale

I wanted to ask my noble and learned friend to say a word about the relationship of this Bill to Scotland. As I read it, the Bill applies to Scotland only in a very minor respect. In effect, therefore, unless Scottish law is altered to bring it into line with this Bill, there will be great differences in the jurisdictions. That sort of difference of matrimonial jurisdiction can be highly inconvenient, particularly when there is only a border separating the two legal systems. It leads immediately to forum shopping—in other words, to trying to acquire the best jurisdiction and the best form of suit for one's case. That is particularly a danger with this Bill because Clause 16(2)(6) allows one party, who will almost always he the party seeking the divorce, to acquire a jurisdiction for the purpose of this Bill by one year's habitual residence in England or Wales before the statement is filed. Therefore, nothing is easier than forum shopping under this Bill in relation to Scotland.

The 1969 Bill was not extended to Scotland because the then Secretary of State for Scotland, Mr. William Ross, who later became a Member of your Lordships' House, would not have it at any price. He was in a minority in his Cabinet in being far from enamoured of the permissive society. That is why the Bill was not extended to Scotland. The 1969 Act was in effect extended subsequently, during the 1970s, by a Private Member's Bill, so it is now the law in Scotland as it is in England—and a highly unsatisfactory law it is, as the White Paper has shown.

Apart from that background, with which I should be grateful if my noble and learned friend could deal, I wonder whether he can specifically answer whether a system of quickie divorce obtains in Scotland. In this country it was the creation of the Lord Chancellor's Department and if that system obtains in Scotland, I imagine that it is by rules of court. If I am wrong, perhaps my noble and learned friend, with his vast knowledge, will correct me.

Apart from the question of the quickie divorce, which would be a reason, I suppose, for extending the Bill to Scotland as rapidly as possible along with all the other defects of the 1969 jurisdiction as set out in Chapter 2 of the White Paper, I should have thought that there is every reason why this Bill should extend to Scotland or why there should alternatively be a Scottish counterpart.

10.15 p.m.

The Lord Chancellor

As my noble and learned friend has explained, the Scottish divorce law has in recent times depended upon different provisions from those in England, although at present the statutory provisions are very similar. The history of the divorce law of Scotland and that of England and Wales has not been the same over the centuries. The way in which the law is used in Scotland is different; for example, a much smaller proportion of cases is based upon fault Scotland than in England and Wales.

Procedures in Scotland are somewhat different from those in England and Wales, but the essential difference between a fault-based divorce and a divorce that is not based on fault in relation to the times that one has to wait is reflected in the law of Scotland. The Bill is brought forward on the basis of consultation in the English jurisdiction. It is true of course that there are provisions for jurisdiction in Clause 16, which are the normal ones for this type of statute.

It may well be that in due course the Scottish people will wish to have a law along these lines or a different law. The two have not, as I said, marched together. I have no proposal to extend the Bill to Scotland. My responsibilities at the moment, as it happens, are in relation to England and Wales. There were minor matters with which my noble and learned friend was not concerned, but on the main subject matter it is not proposed to extend the Bill to Scotland. It will be for those concerned with the Scottish jurisdiction to consider in due course whether they want to follow along these lines.

Lord Simon of Glaisdale

I am much obliged to my noble and learned friend. Would he care to say something about the quickie divorce in Scotland?

The Lord Chancellor

I have sought to say that fault-based divorce is not used in Scotland in anything like the proportions in which it is used here. The procedures are somewhat different in Scotland, but they admit of a divorce being granted earlier on the fault base than on the non-fault base.

Clause 60 agreed to.

Schedule 1 [Arrangements for the Future]: [Amendment No. 190 not moved.]

Lord Meston moved Amendment No. 191: Page 38, line 16, leave out ("obtaining the information which it requires to determine") and insert ("making an order in respect or).

The noble Lord said: Schedule 1 contains the exemptions to the requirements in Clause 9 to have finalised the financial arrangements before a divorce order or a separation order. The first exemption depends upon a number of conditions being met. Under paragraph 1(b) the applicant must show that he or she has: taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements". Questions have been raised as to whether that will require disclosure of privileged correspondence to the court, which may preclude the same judge from dealing with the final financial hearing, if there is to be one.

Under paragraph 1(c)(i) the applicant must also show that the other party has been obstructive, or under paragraph 1(c)(ii): for reasons which are beyond the control of the applicant, or of the other party, the court has been prevented from obtaining the information which it requires to determine the financial position of the parties". It is not clear what paragraph 1(c)(ii) is aiming at. It seems to envisage a situation when neither party is at fault, but somehow the court has been prevented from obtaining necessary information. One can imagine situations where the applicant, or indeed the respondent, is prevented from obtaining information by the other spouse or by some uncooperative third party, but it is less easy to see what might prevent the court. I also question why the exemption is limited to the obtaining of information. Would it not he better to provide for any circumstance which would prevent the court from making an order? I give as an example lack of available court time to deal with the case within the period of one year provided under the Bill.

These provisions are potentially of considerable importance. The noble and learned Lord, Lord Simon, referred to forum shopping as between England and Scotland. Questions of broader international forum shopping need to be considered. Upon the progress of the divorce may well hinge the power to make financial provision. If a spouse is able to obtain a quicker divorce abroad, while under the English procedure at least one year must elapse, the inevitable consequence will be that without some amendment the English court will he disabled from dealing with the financial ramifications of the marriage breakdown. Other jurisdictions may be less willing to grant the equivalent of a stay if they learn that divorce in this country will take at least one year.

I do not seek to expedite the procedure whereby a year is required but it seems to me that these questions need to be addressed. Meanwhile, the purpose of this amendment is to probe a little further the thinking behind the first exemption in Schedule 1. I beg to move.

Earl Russell

In addition to supporting the amendment tabled by my noble friend Lord Meston, I wish to speak to Amendment No. 193 which stands in my name and is grouped with his amendment. It adds one more to the list of exemptions to the requirements under Clause 9. It adds the exemption: where there is continuing violence, to the applicant, other party or child of the family". Those are circumstances in which continued negotiation may be extremely difficult and sometimes unsafe. It is a principle on which I have already touched, Ihat the physical safety of the parties should come first. if am sure that the noble and learned Lord will understand that sometimes it is crucial that women who are escaping continuing domestic violence should be in a place where their former partners cannot find them. Of course, if one is continually corresponding through a lawyer it is very difficult to keep one's whereabouts literally and strictly secret. If the exemption were not granted there could be a threat to the safety of the parties as a result.

Some time ago the noble and learned Lord kindly gave me a meeting on these issues. I hope that I shall receive a sympathetic response tonight. If he indicates that the amendment is not the most appropriate way of pursuing the matter, that is something to which I would listen. In the meantime, I do not beg to move any more than did the noble and learned Lord, Lord Simon, but I hope that the amendment will be considered with this group.

The Lord Chancellor

Perhaps I may speak to the amendment tabled by the noble Lord, Lord Meston. It deals with the situation in which an application has been made to the court under Schedule 1(c), which is where the amendment takes effect. The paragraph reads: the applicant has made an application to the court for financial relief and has complied with all requirements of the court … but", the court is unable to make the order for lack of information.

The effect of the amendment would be to widen the scope of the exemption so that it will apply in all cases where a court is prevented from making an order in respect of the financial position of the parties for reasons beyond the control of the applicant, not simply where information is not available to the court. That part of Schedule I was intended to provide for specific circumstances whereby a party was unable to put before the court sufficient information to enable a decision to be made about financial matters. For example, that may occur where there is outstanding separate litigation relating to the ownership of land or, indeed, to personal injury damages. The total amount of the asset in question might he difficult to assess. Such matters would affect the assessment of the total value of the parties' assets, so a final decision for a division of assets may take some years.

I am very wary of extending the scope of the exemption provisions of Schedule I because, as I tried to explain earlier, they are fairly fundamental to my view that it is essential that parties face up to the responsibilities of the marriage before a divorce is granted. That is the explanation for the provisions. I do not believe that it is necessary to make such provision wider in the way suggested by the noble Lord.

So far as concerns forum shopping, one cannot completely obliterate that unless one makes provisions in this Bill which are the same as those in every other jurisdiction; but, as they are not all the same, it would be quite difficult to do so. Therefore, some element of forum shopping cannot be completely ruled out. Nevertheless, I believe that we have a reasonable provision in the way that we have approached the matter with the jurisdictional requirements of Clause 16.

I turn now to Amendment No. 193. I can tell the noble Earl that, again, I am reluctant to widen the scope of the second exemption under Schedule 1 so that it could be used in cases where the applicant has been unable to reach agreement due to, continuing violence, to the applicant, other party or child of the family". If I have understood the amendment correctly, I believe that it would allow for the applicant to take advantage of the exemption, even where he or she was the perpetrator of the violence, because of the reference to the "other party". However, I am not sure whether that is necessarily what was in mind.

In any case, I do not believe that the scope of the exemptions under Schedule 1 should be widened. Making financial arrangements does not, by definition, imply or require mediation or any other face-to-face negotiation. Parties can be separately represented and make their arrangements through their legal representatives; that is, through arm's length negotiation for which purposes legal aid would be available to those who qualified. As I mentioned earlier in relation to mediation, where questions of violence are likely to arise as between the parties, mediation would hardly be a suitable forum.

Obviously, where a party suffered injury or ill-health as a result of domestic violence which prevented him or her from making arrangements, the second exemption under Schedule 1 would apply. I am relying on Part III to deal with situations of domestic violence. Indeed, we have made provision in that part for dealing with domestic violence during the currency of the divorce, as well as at other times. In that situation, I am not very willing to extend the exemption further. One of the reasons why it is so necessary to have Part III before one can go forward to a satisfactory divorce law of this kind is precisely the sort of situation mentioned by the noble Earl.

Lord Meston

I am grateful to the noble and learned Lord the Lord Chancellor for the clarification that he has provided on the first exemption in Schedule 1. It is correct to say that my amendment would have somewhat widened the scope of the exemption, but, I would suggest, not unduly so. However, I understand the anxiety of the noble and learned Lord not to widen the scope of the exemptions much beyond those contained in the Bill.

I certainly would not wish to interfere in any way with the jurisdictional provisions of the Bill which preserve the existing law. Indeed, in no sense would I have sought to do so by way of this amendment or by any other means. My anxiety in that regard is that the provisions of this Bill, when they become law, may mean that other countries would be tempted to accept jurisdiction in divorce cases which they otherwise would not have accepted. My anxiety as a practitioner is that parties should not be tempted, as it were, to shop outside this country. I should prefer them to shop in this country—a shop in which I am an assistant. However, I recognise that this amendment is perhaps an inadequate peg for the various comments I sought to make about the first exemption. It is something to be looked at closer at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

The Lord Chancellor moved Amendment No. 192: Page 38, line 27, leave out first ("or").

The noble and learned Lord said: In moving Amendment No. 192, I wish to speak also to Amendment No. 194. These are drafting amendments to correct and clarify the parts of the clauses to which they refer. I beg to move.

On Question, amendment agreed to.

[Amendment No. 193 not moved.]

The Lord Chancellor moved Amendment No. 194: Page 38, line 30, after ("agreement") insert ("with the other Party").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 195 and 196 not moved.]

Schedule 1, as amended, agreed to.

Schedule 2 [Financial provision]:

The Lord Chancellor moved Amendment No. 197: Page 40, leave out lines 41 to 43.

The noble and learned Lord said: In moving Amendment No. 197, I wish to speak also to Amendments Nos. 198, 200, 201, 202, 203, 204 and 205. These amendments are largely technical and are inserted by way of clarification. The intention is that the current law relating to financial provision on divorce should be amended by Schedule 2 only to the extent that is necessary as a result of the changes in the Bill to the law relating to divorce and judicial separation and no more. Amendments Nos. 197, 198, 200 and 202 clarify that there is no change in the existing law in relation to the number of periodical payments orders and lump sum orders which may be made in favour of each spouse. Amendment No. 202 clarifies that only one property adjustment order of the same type may he made in relation to the same spouse. Where a term in a financial provision order in favour of a spouse or child of the family is to begin earlier than the time when the order was made, Amendments Nos. 204 and 205 alter the earliest time by which the term can begin from the date when the statement of marital breakdown was made to the date when the statement was received by the court. This is in the interests of certainty and should avoid disputes as to the date when the statement was actually made. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 197A and 197B not moved.]

The Lord Chancellor moved Amendment No. 198: Page 41, line 15, at end insert ("but may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party.").

The noble and learned Lord said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Meston moved Amendment No. 199: Page 41, line 18, after ("payments") insert ("or lump sum").

The noble Lord said: In moving this amendment I wish to speak also to Amendment No. 206. Amendment No. 199 is designed to empower the court to order an interim lump sum at an interlocutory stage. I should tell the Committee that this is an amendment proposed by the Family Law Bar Association to address a gap in the existing jurisdiction. If the litigation or negotiations become protracted, parties may need more than just interim maintenance as the present law provides. They may need capital to continue to fund their lawyers or expert witnesses. They may require capital to purchase a house, or to put down a deposit. Some other need may unexpectedly arise for which they are unwilling or unable to borrow.

If the power is to be given to the court, it is clearly a power to be exercised with some caution in case it distorts the ability of the court to deal fairly with matters at a final disposal of the case. Nevertheless, it is a useful power, and I hope that the opportunity will be taken to add it to the legislative armoury.

Amendment No. 206 seeks to introduce two recommendations of the original Law Commission report which were omitted from the Bill. The first limb of the amendment provides for variation of settlement of property orders. Paragraph 6.3 of the Law Commission report includes the following passage: Experience has shown that settlement of property orders are usually made at a time in the lives of spouses and their children when it is extremely difficult to predict events which may occur and needs which may arise some ten to fifteen years ahead. This has been particularly so with the `Mesher type order, where the house is settled upon the parties in fixed shares, but not to be sold until. for example, the youngest child reaches a certain age or the mother re-marries. Such an order cannot he varied even though the shares were fixed on the assumption that, for example, one party would continue to pay mortgage instalments or make periodical payments. which in fact he or she has not done".

Amendment No. 206 is borrowed with gratitude, but with some modification, from the Law Commission. It provides for the power to be exercised in closely defined circumstances which appear on the face of the amendment. It provides that the power of the court shall be exercised if it appears that, a fundamental assumption underlying the making of the original order has become falsified due to supervening circumstances outside the control of the parties; or … one of the parties has failed to comply with his or her obligations under the order and in consequence it is unjust for the order to remain in effect; or … the order was made on the basis that any children of the family would reside with one party to the marriage and some or all of them are in fact residing with the other or elsewhere or have died". The other limitation on the face of the amendment is that the court shall not exercise its power unless it appears that the interest of a third party will not be prejudiced.

Secondly, the amendment provides for there to be a power to commute an existing maintenance order by means of a capital order even if there has already been a previous capital adjustment. Considering the powers of the court when varying financial provision orders, the Law Commission stated at paragraph 6.9 that, it could not escape our attention that the exercise of the court's power to substitute a 'clean break' for a continuing maintenance obligation was unduly hampered by the fact that the court cannot make a property transfer ora lump sum order at that stage".

The report described the particular difficulties which were manifested in one reported case, where the court was unable directly to order the husband to pay a sufficient lump sum to compensate the wife for loss of future periodical payments even though he could well have afforded it. The problem is that, although an arrangement can be brought about by an agreement between the parties, if the payer will not agree, the court cannot order it. That is another gap in the law which is well known to practitioners and which hampers the clean break and limits the flexibility of the court. The wording of this part of the amendment is again borrowed from the Law Commission proposals. I beg to move.

Lord Phillimore

As a barrister practising in family law, I should like to support both amendments proposed by the noble Lord, Lord Meston. I wholly endorse all the comments that he has made and all the reasons that he has advanced in support of his amendments. I understand that the intention behind the first is to enable the courts to make an interim lump sum order, which they cannot at present easily or usually make; that is to say, to have the power to make a capital provision order in divorce or separation proceedings at an early stage.

There are often circumstances such as those that the noble Lord outlined and others where it would be possible to alleviate the tensions and hardships that often occur during the trauma of divorce proceedings if the courts had such a power. It would be for the benefit not only of the parties but, more important, for any children involved. For instance, in appropriate cases capital provision could be made for alternative accommodation for one of the spouses at an early stage. At present, the usual practice is not to make any capital provision orders until after such matters as the determination of any application in relation to such matters as with whom the children should live in the long term. That necessarily involves substantial delay before the courts can properly make capital provision orders. It has often been said that justice delayed is justice denied. That would, in my view, he true in such circumstances.

I consider that my point would also be valid under the new procedure proposed by the Bill whereby the parties should seek to resolve any disputes relating to child, children and finance in the period for reflection and consideration by mediation or, in the absence of agreement, by recourse to the courts. It would seem highly desirable that the courts should have available to them the power to make all appropriate orders at as early a stage as possible and to have wide enough powers to do justice between the spouses.

This leads me also to support the noble Lord's second amendment, since it would provide the courts with two valuable powers which they do not at present enjoy in making financial provision and property adjustment orders. As I understand it, the effect of the amendment would enable the courts, first, to mitigate hardship and injustice in cases where the provisions of the original order making capital provision have unforeseen consequences. Secondly, it would enable the courts to make a further capital provision order at some time later than the original order. At the present time, the law only enables the courts to make one property adjustment order and/or one lump sum order. This type of order can only be varied in very limited circumstances, when the courts have allowed the device of leave to appeal out of time to be used. This device is reflected in the proposed subsections (2A)(a) and (c), derived, I believe, from the leading case dealing with this exception from the general rule. Furthermore, this exception can only be used where the fundamental supervening event has occurred within about 12 months from the date of the original financial order. I suggest that it would be preferable to grant the courts the necessary wider statutory power by these amendments.

As for the second additional proposed power, the present law only enables the court to make one capital provision order and that cannot be varied save in the way that I have already stated. That is too restrictive, since circumstances may subsequently occur where it would be possible in the light of the financial resources of the parties to impose a clean-break order where it was not possible when the original order was made. It is clearly desirable that clean-break orders—a phrase used to indicate complete severance of all financial links between the parties—should be made wherever possible so that, among other things, new relationships, whether of cohabitation or marriage, do not suffer unnecessarily from the continuing stress of maintenance payments.

10.45 p.m.

The Lord Chancellor

Taking Amendment No. 199 first, my understanding is that the court does at present have an inherent jurisdiction to make such payments, but in rather limited circumstances. I think it is fair to say that the precise basis of the jurisdiction is a little uncertain.

My main concern regarding an amendment of this kind is that orders under it could restrict judicial discretion at the final hearing unless there are very substantial assets, which is when the court's inherent power would appear to be used at the moment.

I can, however, appreciate that a power of this kind might well be useful. Therefore, I propose to deal with it in the same way as I should like to deal with Amendment No. 206, which extends the power of the court in Section 31 of the Matrimonial Causes Act 1973 to vary or discharge property adjustment orders which settle property or vary settlements; and, secondly, gives the court power to make a property adjustment order or lump sum order where it considers it appropriate when it is dealing with an application to vary a periodical payments order.

In principle, in the interests of certainty and finality in litigation, property adjustment orders are once and for all orders. It is for this reason that only those which settle property or vary a settlement can be varied, and then only where they were made in the course of judicial separation proceedings and the decree is rescinded where an application for divorce is made.

I can appreciate that there are circumstances where, in the interests of justice, there may be grounds for making an exception to this principle. Accordingly, I wish to seek the opinion of the ancillary relief advisory group which we have in place in relation to these matters, advising about the whole procedure of ancillary relief, whether or not it would consider that amendments on these lines would be helpful. I should like therefore to consider these amendments and seek to obtain as soon as I can the advice of the ancillary relief advisory group.

Lord Meston

I am grateful to the noble Lord, Lord Phillimore, for his support. It is reassuring to have at least one other paid-up member of the Family Law Bar Association in the Chamber, even at this hour. I am also particularly grateful to the noble and learned Lord the Lord Chancellor for the indication that he will put this matter before the committee for further and, I hope, reasonably urgent consideration. On that basis, I am very happy to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 199A to 199C not moved.]

The Lord Chancellor moved Amendments Nos. 200 to 203: Page 43, line 22, at end insert ("but the court may not make more than one periodical payments order, or more than one order for payment of a lump sum, in favour of the same party."). Page 44, line 11, at beginning insert ("On an application made under this section,"). Page 44, line 12, at end insert— ("(IA) If the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above."). Page 44, leave out lines 19 to 24

The noble and learned Lord said: I spoke to these amendments with Amendment No. 197. With the leave of the Committee I should like to move them en bloc. I beg to move.

On Question, amendments agreed to.

[Amendments Nos. 203A to 203C not moved.]

Lord Clifford of Chudleigh moved Amendment No. 203D: Page 45, line 23, at end insert— (" . For section 25(2)(g), substitute— (g) the conduct of the parties and the cause of the breakdown of the marriage;").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 204A and Amendments Nos. 206A to 206F at the same time. I am most grateful to the Committee because I understand that certain of the points I raise may have been broached before.

My amendments are designed to remedy existing financial injustice in the divorce law. At present, before the courts will consider the conduct of any of the parties, the onus is on the applicant to show that the conduct is exceptional. In the words of the Matrimonial Causes Act 1973, as amended, it would be "inequitable not to consider it". Clearly, that is best done by permitting the court, when it assesses the financial provisions, to take into account the conduct of the parties and the causes of the breakdown of the marriage. I suspect that most people will agree that that is essential.

However, under the present law, conduct is all too frequently left out of account. I am told that in the case of Whiston v. Whiston (1995) Mr. Whiston had to go as far as the Court of Appeal at his own expense, before the court could be persuaded that his "wife's" bigamy was something which they should be concerned with when assessing what he should pay her. The respondent was legally aided so Mr. Whiston could not recover his costs and it was a great deal of money.

I was pleased to see that the noble Lord, Lord Habgood, so stated in his Second Reading speech, that in the settlements arrived at during the year of reflection, conduct ought to be considered. My Amendment No. 203D will ensure that that is achieved more satisfactorily than it is at present. The Committee may have noticed also the article referred to in the media and published in The Tablet by His Eminence, Cardinal Hume, in which he came to a similar conclusion. He said: If one party does not want to divorce and sees themselves as the innocent party it is extremely important that they should not be penalised in any settlement. To this extent, at least, it is essential that immoral or unjust conduct should effectively be taken into account".

Amendment No. 204A prevents a party from claiming maintenance not only when they subsequently remarry, but also when they start co-habiting as if married. Without this, marriage will continue to be discriminated against by the divorce laws. Since mediation is meant to be the means by which financial settlements are achieved, one might ask in passing: who is to choose the mediator? Who is to train the one person who is to "divide the spoils" in a marital breakup? Surely, it would he wise to have a panel of at least three people. The body should include one who has experienced the trauma of divorce himself or herself; a child psychologist, if children are involved; and a lawyer trained in family law. This replacement for the present gallery of solicitors, counsel, accountants, asset assessors, etc., will be compelled by existing law to be subject to almost limitless acquisitiveness on the part of an applicant. That may often be the female spouse who is, more often than not, not the family breadwinner, nor usually the inheritor of capital assets nor the creator of those assets or of any income-earning business.

Members of the Committee may wonder how that will he so. I have to say that it is the law at present. The law with respect to financial settlements in divorce proceedings already works that way. A spouse may be turfed out of his house on false allegations. The other spouse will get de facto custody of the children thereby and may choose to invite a lover into the home. If the children are young the mother will get custody in the vast majority of cases. I doubt whether there are many lawyers who would dispute that.

If the children reside with the mother, she will then have need of the available accommodation and thus she will get the matrimonial home. She will get maintenance for the children and also for herself. The Child Support Agency will chase the father for child maintenance—and they can reduce him to just about the income support level. However, the father will not get any additional rights of access to his children, despite the financial asset-stripping which he will have had to undergo. Neither, more importantly, will the children get any greater rights to access to the father. That is a most important point which the social workers so often overlook.

Your Lordships may ask how this can be possible. The answer is this. No matter how flagrantly she may choose to ignore the order of the court defining the father's right to access, the likelihood of the court taking the children away from the mother and giving custody to the father is very slim. I think the Committee will begin to see that this can all have a shattering effect on the ordinary father. Yet there are many men who have suffered in this way. Some are not without fault; but many have done nothing wrong. They are just ordinary, regular husbands and fathers. But their lives are ruined. They have no home; no family. They cannot see their children except rarely when the mother allows; yet they have to pay, pay and pay. And they have to endure this cruel and unusual system of injustice until their children have grown up or have ended their fulltime education. That sometimes can be for the majority of the father's life. It is a sad fact that many of these fathers end up drifting away from their children, not because they want to—on the contrary.

A converse hardship can be seen in the case of older women whose children have grown up. She may be deserted by her spouse and her children have grown up, so she will not receive the usual lion's share of the family assets. However, what becomes of her selfless commitment to her marriage and her family? It is not a matter which the law directs the courts to he especially concerned about.

Our laws appear to be in the position where they reward the badly-behaved and they penalise the victims of such had behaviour. That is the very paradigm of injustice. We should be deeply ashamed that our legal system has sanctioned it. We all agree that this is unsatisfactory, and we all agree that it needs reform. But it is an unfortunate fact that the Family Law Bill as currently drafted will not change this most unjust situation.

I have knowledge of a case where the wife successfully sued for a decree absolute, custody of the children, the family home and all her husband's income-earning assets within four years of the husband having inherited capital wealth. The husband was forced to borrow large sums of money to replace sums which were in effect stolen from his children's education fund and also in order to cover maintenance payments to his wife and huge legal fees that he had no option hut to incur.

Unlike the situation described by the noble Lord, Lord Irvine of Lairg, on the llth January (at col. 283 of Hansard), there was no proven fault in this case, and the respondent did not defend the case precisely because he was thinking of the children. This is not an unusual case. Similar cases occur regularly.

In defending the case, the husband recognised that the inevitable slanging match between the legal representatives, the parties and witnesses would be presented in open court. It would subject the children to harmful remarks at school or from those parochial newspaper readers who might gloat over the reports of the case.

That was not the only cause. I warmly urge the noble Lord, Lord Irvine of Lairg, to hear that in mind before he makes further pronouncements about "defence" and the guilty parties in cases of marital breakdown.

The respondent husband was assured by his legal advisers, in the knowledge that there is a tendency among members of the judiciary to favour the mother, that for every extra week that he might wish to pursue the case in court and attempt to protect himself and his children from allegations falsely made against him and from the process of asset-stripping that he was forced to endure, it would cost him a further £100,000 in legal fees. Truly a most unenviable choice: the devil or the deep blue sea.

Who are the winners in that situation? Certainly from the financial point of view the appellant wife was, and of course the lawyers were. Who were the losers? One loser was certainly the respondent father, who is still paying heavy interest payments on his large, enforced borrowings. But, above all, the losers were the children. The financial arrangements originally designed for the children's future went into the pockets of the legal representatives; the major part of the balance went to the appellant wife. But, most of all, the children lost the all-important stability of their home life—to be able to confer, to question both their mother and father at any time and under the same roof and to have the assurance of a reply which they would and could accept with confidence in the knowledge that behind it lay the completely committed love of a father and a mother.

That stability disappeared. Consequently, it affected the children's education, which, in turn, required a further financial outlay from the respondent father. It appears that the father is always responsible for the education fees of the children as he is the conventional breadwinner. Therefore, on top of his existing interest payments and debts, he must pay still more.

That situation is not confined to the very rich. It is typical throughout the wealth brackets—the rich, the moderately well-off and those substantially poorer in society. Neither is it an uncommon occurrence; it is standard. An appellant who may be almost entirely to blame for marital disharmony, and who may be suffering from or prone to a mental disorder and lacking in the proper responsibility, is nonetheless permitted equal choice as to where the children of the marriage are to be educated. That is so despite her having no financial obligation towards that essential, vital part of their young lives.

There are many complications in this field—the location of the school and the proximity of the school to the custodial parent as well as to the other parent. It is so complex that it seems unjust to expect the mediator to take the decision or to allow him to require the parties to do so at his behest. It is precisely the kind of situation arising within the mediation process which will undermine any glimmer of reconciliation.

My amendments would provide for adjustments in maintenance payments according to changing circumstances. For example, if the child is a day-school attender and then changes to being a weekly or full-time boarder, to ensure that justice is done to the parties involved in the marital break-up, the provider of the education fund should be relieved from part of the maintenance payment that he is currently making.

One particular phrase that strikes terror in the heart of any man whose wife wishes to divorce him is that she has the right to live in the manner to which she is now accustomed. She can make a claim on her former husband, even if it means near-ruin for him financially. How will the mediator cope with that terrifying concept which will be imposed on him by law? How will he be able to maintain a balance between the parties in treating with them? This ill-conceived parameter for financial justice between the parties is generally applied to the female spouse, depending on the financial status of the male spouse at the time of the grant of the divorce order. The beneficiary applicant, who prior to the divorce has had the benefit of help from the ex-partner's financial advisers and has in the past left money matters to her husband, may find that a sudden inflow of capital goes to her head. Sometimes she finds that the money is just blown. That can hardly be to the advantage of the children. It cannot set a good example of careful husbandry of resources.

There is no doubt that the flow of capital from the male to the female spouse—though occasionally it may operate in the reverse—is more the rule than the exception. No matter which spouse is the recipient of the capital flows and/or maintenance payments, the inclination to live off unearned wealth is often wasteful and a poor education of the children in financial matters. All too often it is financially crippling to the respondent husband, particularly if his resources are limited. The eventual result may be that he becomes yet another person who relies on the taxpayer for welfare payments. The social costs rise. The mediator is to be paid out of the Legal Aid Fund. If there are little resources within the family, one of the parties will end up relying on welfare. The taxpayer is to pay. Where is the saving?

If approved in its present form the Bill will justly earn the title of a lethal, merciless and punitive measure, both to the taxpayer who will have to pay and to the party who is divested of his assets, and the children will be denuded of their basic right to the love and care of a mother and father. I note in passing that the framers of this legislation enjoyed that right when they were themselves children but seem very unconcerned that children of this generation should be denied it.

The majority of taxpayers need stable married lives. Why should they be required to subsidise the folly of our current situation? It strikes me as yet another form of hidden taxation. It may be worth the expense if the benefits to the children are obvious, but there are none. Instead, there is much damage. If it were not for the fact that the nation was fed up with the creation of new regulatory monitoring bodies, I would suggest that the noble and learned Lord the Lord Chancellor initiate the creation of a legal watchdog, similar to those that currently cover the public utilities. I hope that cricket and tennis umpires will forgive me if I suggest the name "Offleg" or "Offcourt".

Let us take a more optimistic view. Is it beyond the wit of us all to make the essential reforms to redress the terrible injustices to which I have alluded? I believe that it is not, and I urge these amendments upon your Lordships. I beg to move.

Lord Irvine of Lairg

I shall detain the Committee for only a moment or two. The noble Lord, Lord Clifford of Chudleigh, attributed certain observations to me on a previous occasion or occasions. I have to say that I neither recognise them nor recall them. I am as capable of erring in recollection as any. Hansard will tell. But I have to put on the record of our proceedings that I have no recollection of the observations that he has attributed to me.

The Lord Chancellor

I am not sure that I entirely follow all that the noble Lord, Lord Clifford of Chudleigh, said. The present law is the law under which the cases to which he referred must have been decided. There is no doubt that in matters of disputed residence and access to children, the courts make a decision in the light of all the circumstances. I believe that they do their best to reach the right decision. One of the leading principles under which they make those decisions is to treat the welfare of the children as their primary consideration.

The noble Lord considers that his amendment, Amendment No. 203D, would make matters better. Over the years, the courts have considered these matters. In 1973, the noble and learned Lord, Lord Denning, who was and is a very humane and concerned judge, said in relation to conduct: Does this mean that after a marriage has been dissolved, there is to be a post mortem to find out what killed it? We do not think so. In most cases both parties are to blame, or, as we would prefer to say, both parties have contributed to the breakdown. There will be many cases in which a wife, although once considered guilty or blameworthy, will have cared for the home and looked after the family for many years. Is she to be deprived of the benefit otherwise to be accorded to her because she may share responsibility for the breakdown with her husband? One has to consider what benefit that particular amendment would give. The noble Lord referred to Whiston v. Whiston. My understanding of the result of that case is that as a result of the wife's bigamy, the court held that no claim should be permitted for financial provision under the existing law. I am not sure whether or not the noble Lord thinks that that was a right decision, but, as I understand it, that was the decision. I doubt whether his amendment would have produced any other decision. I think not. So I do not understand how that case is relevant to supporting his amendment.

However, I should wish to refer this issue to the ancillary relief advisory group. My understanding of the law as it works at present is that conduct can be taken into account if it would be inequitable in the opinion of the court to disregard it. I believe that that is a reasonable basis on which conduct should be considered in relation to financial provision.

So far as concerns the various cases to which the noble Lord referred in the course of his speech, it is very difficult to generalise about these matters. But there is no doubt that, if husband and wife—father and mother—separate, there is a very difficult decision left for the court. My understanding is that the court does its best to do justice in the particular circumstances of the particular case. Certainly, I am not aware of any general view that the courts do not attempt to do justice between the parties in those situations.

So far as concerns the children, I believe that the court seeks to ensure that both parties remain in contact with the children so far as that is possible. Sometimes the nature of the dispute makes that difficult, but I am certain that it is in the best interests of the children that they should remain in contact with both parents in the generality of cases. I believe that that principle guides the court in its consideration. As with other amendments, I am prepared to take the advice of the ancillary relief group, but the present law on this matter was reached after mature consideration and I should be surprised if it can be improved upon.

11.15 p.m.

Lord Clifford of Chudleigh

I am grateful to the noble and learned Lord for his statement. Although I know that we differ on various aspects of this, I am grateful that he has acknowledged that conduct must also be taken into account. I am sure that this subject and the amendments that I have tabled will reappear on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 204: Page 45, line 32. leave out ("made") and insert ("received by the court").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 197. I beg to move.

On Question, amendment agreed to.

[Amendment No. 204A not moved.]

The Lord Chancellor moved Amendment No. 205: Page 46, line 5. leave out ("made") and insert ("received by the court").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 206 to 206F not moved.]

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 207: After Schedule 3, insert the following new schedule—

("SCHEDULE MATRIMONIAL HOMES (CO-OWNERSHIP)