Mrs Cheryl Gillan (Shadow Minister, Home, Constitutional & Legal Affairs; Chesham & Amersham, Conservative)

I beg to move amendment No. 29, in page 2, line 22, leave out subsection 2 and insert—

'(2) In Part 4 of the Family Law Act 1996 leave out subsections 35(10), 36(10), 37(5), and 38(6) and replace each of these subsections with

''( ) an order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.''.'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

New clause 1—Removal of anomalies in relation to cohabitants—

'Part 4 of the Family Law Act 1996 is amended as follows.

(1) Leave out section 41

(2) For section 35(10) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.

(3) For section 36(10) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.

(4) For section 37(5) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.'.

(5) For section 38(6) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period until the occurence of a specified event or until further order;''.'.

New clause 12—Duration of occupation orders—

'(1) In Part 4 of the Family Law Act 1996 (c.27) (family homes and domestic violence), for section 35(10) (one former spouse with no existing right to occupy) substitute—

''(10) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

(2) For section 36(10) (one cohabitant or former cohabitant with no existing right to occupy) substitute—

''(10) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

(3) For section 37(5) (neither spouse entitled to occupy) substitute—

''(5) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

(4) For section 38(6) (neither cohabitant or former cohabitant entitled to occupy) substitute—

''(6) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

Mrs Cheryl Gillan (Shadow Minister, Home, Constitutional & Legal Affairs; Chesham & Amersham, Conservative)

Ms Sandra Gidley (Women and Older People, Non-Departmental & Cross-Departmental Responsibilities; Romsey, Liberal Democrat)

New clause 12 is a slightly different attempt to get round the same problem. Both the measures that we are discussing are variations on what emerged in the other place. As described by the hon. Member for Chesham and Amersham, non-molestation orders are equally available regardless of marital status and may be made for a specified period or until a further order. That is not the case for occupation orders. I welcome the changes that have been made so far, which get rid of the discrimination between married couples and non-cohabiting couples, but we can still improve things a little further. The problem at the moment is that with the exception of where an applicant is entitled, the occupation orders cannot be issued to cohabitants for longer than a year. They run initially for six months, with the possibility of their being extended for up to a year.

Baroness Scotland of Asthal said in the other place that, when making an occupation order, the level of commitment involved in a relationship should be taken into account, rather than the courts being required to look at the fact that the couple had not married. She did not

''wish to plant the seed of doubt into the court's mind that the level of commitment, or lack thereof, is no longer important.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c.860.]

Although the one-night stand or the short-term relationship is relatively easy to understand, there are cases where women have been contributing to the family home and possibly paying a part, or all, of the mortgage, but have not got around to regularising the situation. Not everybody works like that. Sometimes there can be a psychological pressure on the woman, with the partner saying that that was not important and did not mean that he loved her any the less, and so on.

A number of instances are missed, because although there is an ongoing relationship, the entitlement is lacking. It would be much simpler if the courts had complete discretion over the duration of an order and could adapt it according to particular circumstances. If the Government are not minded to go head first and totally adopt those principles, our amendment would allow for an extra extension of six months, because a number of instances cannot happily be resolved in a year. If the period were extended by an extra six months, thereby giving a total of 18 months, it could be possible for more cases to be brought to a happy resolution.

I am sympathetic to the Conservative amendments and look forward to the Minister's response.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

Let me deal first with the first part of new clause 1, which proposes the repeal of section 41 of the Family Law Act 1996. That section requires the court, when it is considering the nature of the relationship between the parties, to have regard to the fact that they have not given each other the commitment of marriage. The Government accepted arguments in the other place that section 41 was no longer relevant and should be repealed. We proposed an amendment to repeal that section and amend section 36(6)(e) of the same Act, to include a reference, which the court must consider, to the level of commitment between the parties. That amendment struck the right balance between the repeal of an unworkable section and reminding the court of the importance of the outward signs of commitment in a couple's relationship. The amendment was accepted and is now clause 2. The good news for those who are pursuing that line is that section 41 of the 1996 Act is repealed and replaced by clause 2.

The second part of new clause 1, amendment No. 29 and the whole of new clause 12 would standardise the length of occupation orders made under sections 33 and 35 to 38 of the 1996 Act, but in slightly different ways. Under new clause 1 and amendment No. 29, the court would be free to make the order for a specific period, or until a specified event or a further order. As we have heard, under new clause 12 the initial order would be for a specified period of six months, but could be extended for a further period of six months on two occasions, unless an application is made to discharge the order.

At the moment, the 1996 Act provides that, if the applicant for an occupation order is legally entitled to occupy the home or has matrimonial rights in relation

to the home, no limits should be set on the duration of an order. That applies irrespective of whether the applicant is married or cohabiting.

Most spouses are legally entitled to occupy, or have matrimonial home rights, and many cohabitants are also legally entitled to occupy. However, if the applicant is not entitled to occupy the home, or does not have matrimonial home rights, the Act provides that an occupation order should initially be made for a maximum period of six months. It then draws a distinction between spouses, or former spouses, and cohabitants, or former cohabitants. For spouses, it says that the court may extend the order on one or more occasions for a further period of not more than six months if the applicant spouse is not entitled to occupy the property, or if neither spouse is entitled to occupy the property. For cohabitants not entitled to occupy the property, it says that there may be one extension for a further period of not more than six months. The Act draws a distinction between spouses with no entitlement to occupy a property and cohabitants with no entitlement to occupy a property, to reflect the different levels of commitment involved in marriage and cohabitation. If a cohabitant is legally entitled to occupy a property, the Act makes no distinction between spouses and cohabitants in the provisions on the length of the order.

In Committee in the other place, the Government acknowledged that those two relationships can often be very similar, but they are in fact quite different in their structure and implications for property rights. Many people who do not marry wish to keep their property rights separate. That is not a reflection of the validity of the relationship, but simply of the fact that the legal relationship between a cohabiting couple can be different from that l between a married couple. It follows, as my noble Friend Baroness Scotland said, that it is just for the law to reflect the difference in relationships, and the likely complexity of financial and property arrangements, in the way in which it makes occupation orders.

New clause 1 would remove all the 1996 Act's limits on the length of occupation orders, leaving the length of the order—be it for a specific period, until a specified event or until a further order—to be determined entirely by the court. The court's powers on occupation orders are already extremely far ranging: for example, a court can regulate the occupation of the home, prohibit or restrict the occupation rights of one party, require the party to leave the home or exclude the party from a defined area around the home. Given those wide-ranging powers, I believe it is right that there should be restrictions on the court as to how long the order may last and how it may be renewed.

Members should remember that occupation orders are meant to offer what, we hope, will need to be only relatively short-term protection; they should not be used as a long-term substitute for ancillary relief proceedings, in which questions of the division of

property can be properly considered. The orders are intended as a short-term measure, not a long-term solution. In that spirit, I ask that the amendment be withdrawn.

Mrs Cheryl Gillan (Shadow Minister, Home, Constitutional & Legal Affairs; Chesham & Amersham, Conservative)

I have listened carefully to the Minister, and I shall ask for the leave of the Committee to withdraw the amendment. However, it is a shame that an amendment that would widen opportunities and encourage approaches to enable the victim and any children to stay protected in the family home is not to be pursued. It is a shame that the Minister could not see his way to liberating the courts on the question of the length of orders. However, I will reflect on what he has said and withdraw the amendment on the basis that we may wish to revisit the issue on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.