Incidental orders

Orders of the Day — Family Law (Scotland) Bill [Lords] – in the House of Commons at 10:45 pm on 3rd June 1985.

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Photo of Mr Peter Fraser Mr Peter Fraser , Angus East 10:45 pm, 3rd June 1985

I beg to move amendment No. 2, in page 11, line 24, leave out 'An' and insert 'Subject to subsection (2A) below, an'.

Photo of Mr Harold Walker Mr Harold Walker , Doncaster Central

With this, we may take the following: Amendment No. 3, in page 11, line 37 at end insert 'made after the granting of decree of divorce.' No. 4, in page 11, line 40 at end insert 'made after the granting of decree of divorce'. Government amendment No. 5.

Photo of Mr Peter Fraser Mr Peter Fraser , Angus East

The amendments are intended to ensure that incidental orders regulating the occupation of the matrimonial home, the use of furniture in it and so on, or regulating liability for outgoings in respect of a matrimonial home may be made only at the date of divorce or thereafter.

The amendments were tabled in response to views first expressed by the Law Society, which suggested that it would be inappropriate for the power to make incidental orders under clause 14(2) (d)or (e) to be available to the courts while the parties are still married, as disputes about occupancy and furniture arising prior to divorce should be dealt with under the powers conferred by the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The hon. Member for Falkirk, East (Mr. Ewing) raised the matter in Committee and the views expressed by him and, in supplement, by the Law Society, seem to be correct.

The Scottish Law Commission said in its report that some of the incidental orders under clause 14 (2) might not be appropriate before divorce and, accordingly, clause 14 (6) would allow the Court of Session to make rules restricting the types of order that may be made before the granting of a divorce. I think that in such cases it would be desirable to have express provision in the statute rather than leave the matter to rules of court.

Opposition amendments Nos. 3 and 4 are designed to achieve the same effect as the Government amendments, but I believe that it is preferable to make separate provision, on the lines of our amendments, than to write the limitations into paragraphs (d) and (e) of clause 14 (2). The paragraphs relate to the types of orders rather than the times at which they may be made. However, there is only a difference of drafting between us.

Amendment agreed to.

Amendment made:No. 5, in page 12, line 10, at end insert— '(2A) An incidental order referred to in subsection (2)(d) or (e) above may be made only on or after the granting of decree of divorce.'—[The Solicitor-General for Scotland.]