One Former Spouse with No Existing Right to Occupy

Clause 32 – in the House of Commons at 10:45 pm on 17th June 1996.

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Photo of Mrs Diana Maddock Mrs Diana Maddock , Christchurch 10:45 pm, 17th June 1996

I beg to move amendment No. 115, in page 23, leave out lines 17 to 25 and insert— '(1) 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—
    1. (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
    2. (ii) in the case of a former spouse, 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").'.

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

With this, it will be convenient to discuss the following amendments: No. 116, in clause 33, page 25, line 15, leave out from beginning to end of line 13 on page 27.

Government amendment No. 55.

No. 117, in clause 34, page 27, leave out lines 14 to 21 and insert— '(1) This section applies if—

  1. (a) one spouse, former spouse, cohabitant or former cohabitant and the other spouse, former spouse, cohabitant or former cohabitant occupy a dwelling house which—
    1. (i) in the case of cohabitants or former cohabitants, is the home in which they live or have lived together as husband and wife, or
    2. (ii) in the case of spouses or former spouses, is or was the matrimonial home; but
  2. (b) neither of them is entitled to remain in occupation—
    1. (i) by virtue of a beneficial estate or interest or contract; or
    2. (ii) by virtue of any enactment giving him the right to remain in occupation.'.
No. 118, in clause 35, page 27, line 39, leave out from beginning to end of line 36 on page 28.

Government amendments Nos. 56 to 58.

Photo of Mrs Diana Maddock Mrs Diana Maddock , Christchurch

I am aware that the hour is late and that everybody is attempting to hurry. I will do my best, but these are important amendments concerning domestic violence—the one thing that we thought we were going to lose when the Bill fell before Christmas. The purposes of the amendments are to restore the provisions of the Family Homes and Domestic Violence Bill in relation to occupation rights, to give equal rights to cohabitants for protection from violence and to restore the principal criteria for eligibility between different types of occupation orders to the applicant's status in relation to their existing rights to occupy.

Clauses 33 and 35 are to be deleted, and the provisions for cohabitants and former cohabitants reinstated within clauses 32 and 34 so that, irrespective of marital status, the court should have a requirement to include an exclusion provision in the occupation order if the applicant and any relevant child is at greater risk of harm than the respondent and any relevant child. In other words, the balance of harm test should be reinstated as the paramount consideration in determining the matter. Occupation orders under all the clauses should be able to be extended in the time period and the stages set within the different clauses for an unlimited period, bearing it in mind that the court has complete discretion over the length of orders according to all the factors in the case.

Many people are concerned that the amendments to the Family Homes and Domestic Violence Bill—as set out now in part IV of the Family Law Bill—deny equal rights to protection from violence to those cohabitees with no existing legal right to occupy. Clauses 33 and 35 are very unfair, and will create hardship for those experiencing violence in longer-term common law relationships. That is what we are talking about.

Photo of Mrs Elizabeth Peacock Mrs Elizabeth Peacock , Batley and Spen

The hon. Lady states that she is looking at longer-term cohabiting relationships. Can she give some idea of the length of time she is referring to? Although we condemn violence against any person, many of us are concerned that it is possible that someone in a short-term relationship could seek an ouster order and take over a property.

Photo of Mrs Diana Maddock Mrs Diana Maddock , Christchurch

The very next part of what I was going to say deals with that issue. Discretion is needed by the courts to deal fairly with cohabitees on the basis of the nature and length of their relationship. That was present in the original drafting of the Bill, which would have allowed for extremely limited rights of occupation for temporary relief from violence to be granted where the relationship between an applicant and a respondent was recent and unstable. The original Bill provided only limited rights.

The newspapers and other media blew this matter up and misrepresented the facts. I merely wanted to go back to where we were originally, because the newly redrafted clauses discriminate against many common law wives who have had a long-term relationship and who are sometimes legally entitled to an interest in the home in any case. We want to go back to the original drafting of the Bill.

Clauses 33 and 35 limit occupation rights to a maximum period of one year. In certain circumstances—particularly where alternative housing options are poor, or where there is illness—there may be insufficient time in which to find alternative accommodation for a mother and her children. My amendment seeks to delete those clauses, but does not stop the courts saying that the period should be only a short one.

It may help if I explain how clauses 33 and 35 would undermine just and fair resolutions. For example, a woman may have experienced violence after moving in with a common law partner several years ago when he was the original owner or tenant. They may have moved in together, but he may have insisted that the property be put in his name. If there are children of the relationship, the woman will find it harder to leave to escape violence, and she will frequently try hard to make the relationship work, especially for the children. She may also be directly contributing to the rent or the mortgage. She is likely to be contributing to household overheads and she will be very likely to have invested earned income or the value of her unwaged work in the household economy.

A woman in that position may be able to make a legal claim for recognition of her contribution if the relationship breaks down irrevocably, but that may take years and it will not help her with protection from violence in the immediate future. It may well be that her common law partner has refused to marry her, and has refused to put her name on the rent book or the mortgage deeds, precisely because that leaves him with all the financial cards in the relationship and therefore more power and control over the family. We know that that sort of thing happens. Limiting rights of protection from abuse for women in that position is unlikely to create more incentives for such men to marry. That is one of the key points. The current re-drafting of part IV completely fails to address that aspect of domestic violence as it manifests itself in many relationships today.

The Bill purports to be gender neutral, but the example that I have given of a woman in a long-term cohabiting relationship reveals how frequently power and financial advantage within the family are not gender neutral and may provide greater incentives for men not to marry. Women need protection by law from violence. In many cases, commitment to the welfare of the children and the creation of a stable family does exist outside marriage, but the protection of children and of the non-abusing parent, who is often a woman, at risk from violence, should be the paramount consideration.

We have heard people say that passing such an amendment will undermine marriage, but I look at it differently. If we do not pass it, we are saying that people who live together and have children do not have the same responsibilities as married people and that in some ways it is not so bad if they commit violence against the people they live with. We should be saying that, regardless of whether people are married or in a long-term relationship and not officially married, violence is unacceptable and the woman deserves to be protected. It sends a message to men that they cannot avoid their responsibilities to women by not marrying.

I urge the House to support the amendments.

Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers)

The intention behind amendments Nos. 115 to 118 is to remove any differences between the way in which spouses and cohabitants are treated when applying for occupation orders. To that extent, I believe that the hon. Member for Christchurch (Mrs. Maddock) is misguided.

The amendments will have the effect of removing two of the changes made in part IV. First, in the case of cohabitants who have no entitlement to occupy the property, there is a restriction on the length of time for which they can receive the benefit of an occupation order. 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 of non-entitled spouses. The Government believe that an occupation order in favour of a person not entitled to occupy the property should essentially be to provide short-term protection for the victim while they seek alternative accommodation. A year should be sufficient to do so. It is important to recognise that, during that time, a person who is entitled to occupy the property will be prevented from doing so. In the case of marriage, which has involved a lifelong commitment, there may be instances where the court feels that it is just to make a longer order in favour of the non-entitled spouse, but such cases must be left to the discretion of the court.

Secondly, the clauses were redrafted to adjust the operation of the balance of harm test. There was widespread opposition to the suggestion that the court be placed under a duty to grant an occupation order with a restriction or exclusion provision in favour of a non-entitled cohabitant. That is reflected in the clauses as drafted. The amendments would place on the court the same duty in respect of the balance of harm test for both non-entitled spouses and cohabitants. The Government believe that they have ensured that the question of harm to non-entitled cohabitants and to relevant children will be fully considered by the court, by placing in the Bill as drafted an explicit duty on the court to consider that question. The court is not fettered in any way from acting as it sees fit, having considered the question of harm and all the other circumstances of the case.

In considering the circumstances of the case in deciding whether to make an order in favour of an applicant who is a non-entitled cohabitant or former cohabitant under clause 33, the court is required to have regard to the nature of the parties' relationship and to the length of the time during which they have lived together as husband and wife—the very point that the hon. Member for Christchurch seeks to address. The amendments would also remove this requirement. As I mentioned before, the Government believe that there is a difference between cohabitation and marriage, and we believe that it is proper that the difference is reflected in the considerations of the court. We believe that that is the overwhelming view of the House. However, that does not mean that the court will necessarily come to different conclusions in the two cases, given the concern of the court in these matters to afford effective protection from domestic violence.

The amendments almost completely eradicate the differences between those who have given the commitment of marriage and those who have not. They are not acceptable to the Government and I ask the House to reject them. Government amendments Nos. 56 to 58 are acceptable and I urge the House to support them.

11 pm

Photo of Mrs Diana Maddock Mrs Diana Maddock , Christchurch

I anticipated the Minister's reaction to the amendments and I maintain that the Government are wrong on this. They are encouraging men not to commit themselves to long-term relationships and denying help to women who are in long-term cohabiting relationships where men hold all the cards. If the amendments are not passed, the principle of men holding all the cards will be upheld. The Government's attitude is disappointing and I hope that many hon. Members will support the amendments.

Question put, That the amendment be made:—

The House divided: Ayes 207, Noes 261.

Division No. 148][11.00 pm
AYES
Ainger, NickGodsiff, Roger
Alton, DavidGolding, Mrs Llin
Armstrong, HilaryGordon, Mildred
Ashdown, Rt Hon PaddyGraham, Thomas
Ashton, JoeGrant, Bernie (Tottenham)
Banks, Tony (Newham NW)Griffiths, Nigel (Edinburgh S)
Barron, KevinGriffiths, Win (Bridgend)
Battle, JohnGrooott, Bruce
Bayley, HughGunnell, John
Beckett, Rt Hon MargaretHain, Peter
Bennett, Andrew FHanson, David
Benton, JoeHardy, Peter
Bermingham, GeraldHarman, Ms Harriet
Berry, RogerHarvey, Nick
Boateng, PaulHeppell, John
Bradley, KeithHill, Keith (Streatham)
Brown, N (N'c'tle upon Tyne E)Hinchliffe, David
Burden, RichardHodge, Margaret
Byers, StephenHoey, Kate
Caborn, RichardHogg, Norman (Cumbernauld)
Callaghan, JimHood, Jimmy
Campbell, Mrs Anne (C'bridge)Hoon, Geoffrey
Campbell, Menzies (Fife NE)Howarth, Alan (Strat'rd-on-A)
Campbell, Ronnie (Blyth V)Howarth, George (Knowsley North)
Campbell-Savours, D NHowells, Dr Kim (Pontypridd)
Canavan, DennisHughes, Kevin (DoncasterN)
Carlile, Alexander (Montgomery)Hughes, Robert (Aberdeen N)
Chidgey, DavidHughes, Roy (Newport E)
Chisholm, MalcolmHughes, Simon (Southwark)
Clapham, MichaelIllsley, Eric
Clark, Dr David (South Shields)Ingram, Adam
Clarke, Tom (Monklands W)Jackson, Glenda (H'stead)
Clelland, DavidJackson, Helen (Shef'ld, H)
Clwyd, Mrs AnnJamieson, David
Coffey, AnnJenkins, Brian (SE Staff)
Cohen, HarryJones, Jon Owen (Cardiff C)
Connarty, MichaelJones, Lynne (B'ham S O)
Corbett, RobinJones, Martyn (Clwyd, SW)
Corbyn, JeremyJones, Nigel (Cheltenham)
Cousins, JimJowell, Tessa
Cox, TomKaufman, Rt Hon Gerald
Cummings, JohnKeen, Alan
Cunliffe, LawrenceKennedy, Charles (Ross,C&S)
Cunningham, Rt Hon Dr JohnKennedy, Jane (L'pool Br'dg'n)
Currie, Mrs Edwina (S D'by'ire)Khabra, Piara S
Dalyell, TamKilfoyle, Peter
Davies, Chris (L'Boro & S'worth)Lewis, Terry
Davies, Ron (Caerphilly)Liddell, Mrs Helen
Davis, Terry (B'ham, H'dge H'l)Lloyd, Tony (Stretford)
Denham, JohnLlwyd, Elfyn
Dewar, DonaldMcAllion, John
Donohoe, Brian HMcAvoy, Thomas
Dowd, JimMcCartney, Ian
Dunwoody, Mrs GwynethMacdonald, Calum
Eastham, KenMcFall, John
Fatchett, DerekMcKelvey, William
Field, Frank (Birkenhead)Mackinlay, Andrew
Flynn, PaulMcLeish, Henry
Foster, Rt Hon DerekMaclennan, Robert
Foster, Don (Bath)McNamara, Kevin
Foulkes, GeorgeMacShane, Denis
Fraser, JohnMadden, Max
Fyfe, MariaMaddock, Diana
Galbraith, SamMahon, Alice
Galloway, GeorgeMandelson, Peter
Gapes, MikeMarek, Dr John
Garrett, JohnMarshall, David (Shettleston)
Gerrard, NeilMarshall, Jim (Leicester, S)
Godman, Dr Norman AMartin, Michael J (Springburn)
Martlew, EricRowlands, Ted
Maxton, JohnSheerman, Barry
Meacher, MichaelShort, Clare
Michael, AlunSkinner, Dennis
Michie, Bill (Sheffield Heeley)Smith, Andrew (Oxford E)
Milbum, AlanSmith, Chris (Isl'ton S & Fsbury)
Miller, AndrewSmith, Llew (Blaenau Gwent)
Moonie, Dr LewisSoley, Clive
Morgan, RhodriSpellar, John
Morley, ElliotSquire, Rachel (Dunfermline W)
Morris, Estelle (B'ham Yardley)Steinberg, Gerry
Mudie, GeorgeStevenson, George
Mullin, ChrisStott, Roger
Murphy, PaulStrang, Dr. Gavin
Nicholson, Emma (Devon West)Straw, Jack
O'Brien, Mike (N W'kshire)Sutcliffe, Gerry
O'Brien, William (Normanton)Taylor, Mrs Ann (Dewsbury)
Olner, BillTaylor, Matthew (Truro)
Pendry, TomTipping, Paddy
Pickthall, ColinTouhig, Don
Pike, Peter LTrickett, Jon
Turner, Dennis
Pope, GregVaz, Keith
Powell, Sir Ray (Ogmore)Wallace, James
Prentice, Bridget (Lew'm E)Walley, Joan
Prentice, Gordon (Pendle)Wardell, Gareth (Gower)
Primarolo, DawnWicks, Malcolm
Purchase, KenWilliams, Rt Hon Alan (Sw'n W)
Quin, Ms JoyceWilliams, Alan W (Carmarthen)
Radice, GilesWilson, Brian
Randall, StuartWorthington, Tony
Raynsford, NickWray, Jimmy
Reid, Dr JohnWright, Dr Tony
Rendel, David
Roche, Mrs BarbaraTellers for the Ayes:
Rooker, JeffMr. Archy Kirkwood and Ms Liz Lynne.
Rooney, Terry
NOES
Ainsworth, Peter (East Surrey)Burns, Simon
Alexander, RichardBurt, Alistair
Alison, Rt Hon Michael (Selby)Butcher, John
Amess, DavidButler, Peter
Anderson, Donald (Swansea E)Butterfill, John
Arbuthnot, JamesCarlisle, John (Luton North)
Arnold, Jacques (Gravesham)Carrington, Matthew
Atkins, Rt Hon RobertCash, William
Atkinson, David (Bour'mouth E)Channon, Rt Hon Paul
Atkinson, Peter (Hexham)Chapman, Sir Sydney
Baker, Rt Hon Kenneth (Mole V)Clappison, James
Baker, Nicholas (North Dorset)Clark, Dr Michael (Rochford)
Baldry, TonyClifton-Brown, Geoffrey
Banks, Matthew (Southport)Coe, Sebastian
Banks, Robert (Harrogate)Congdon, David
Bates, MichaelCoombs, Anthony (Wyre For'st)
Batiste, SpencerCoombs, Simon (Swindon)
Bellingham, HenryCope, Rt Hon Sir John
Bendall, VivianCouchman, James
Beresford, Sir PaulCran, James
Biffen, Rt Hon JohnCurry, David (Skipton & Ripon)
Body, Sir RichardDavis, David (Boothferry)
Bonsor, Sir NicholasDay, Stephen
Booth, HartleyDeva, Nirj Joseph
Boswell, TimDorrell, Rt Hon Stephen
Bottomley, Peter (Eltham)Douglas-Hamilton, Lord James
Bottomley, Rt Hon VirginiaDover, Den
Bowden, Sir AndrewDuncan, Alan
Bowis, JohnDuncan Smith, Iain
Boyson, Rt Hon Sir RhodesDunn, Bob
Brandreth, GylesDurant, Sir Anthony
Brazier, JulianDykes, Hugh
Bright, Sir GrahamEggar, Rt Hon Tim
Brooke, Rt Hon PeterEvans, David (Welwyn Hatfield)
Brown, M (Brigg & Cl'thorpes)Evans, Jonathan (Brecon)
Browning, Mrs AngelaEvans, Nigel (Ribble Valley)
Bruce, Ian (South Dorset)Evans, Roger (Monmouth)
Evennett, DavidMcNair-Wilson, Sir Patrick
Faber, DavidMaitland, Lady Olga
Fabricant, MichaelMalone, Gerald
Field, Barry (Isle of Wight)Marland, Paul
Fishburn, DudleyMarlow, Tony
Forman, NigelMarshall, John (Hendon S)
Forsyth, Rt Hon Michael (Stirling)Marshall, Sir Michael (Arundel)
Forth, EricMartin, David (Portsmouth S)
Fox, Dr Liam (Woodspring)Mawhinney, Rt Hon Dr Brian
Freeman, Rt Hon RogerMerchant, Piers
Fry, Sir PeterMitchell, Andrew (Gedling)
Gale, RogerMitchell, Sir David (NW Hants)
Gallie, PhilMoate, Sir Roger
Garel-Jones, Rt Hon TristanMonro, Rt Hon Sir Hector
Garnier, EdwardMontgomery, Sir Fergus
Gill, ChristopherMoss, Malcolm
Gillan, CherylNeedham, Rt Hon Richard
Goodlad, Rt Hon AlastairNelson, Anthony
Goodson-Wickes, Dr CharlesNeubert, Sir Michael
Gorman, Mrs TeresaNewton, Rt Hon Tony
Gorst, Sir JohnNicholls, Patrick
Grant, Sir A (SW Cambs)Nicholson, David (Taunton)
Greenway, Harry (Ealing N)Norris, Steve
Griffiths, Peter (Portsmouth, N)Onslow, Rt Hon Sir Cranley
Hague, Rt Hon WilliamOppenheim, Phillip
Hamilton, Neil (Tatton)Ottaway, Richard
Hampson, Dr KeithPage, Richard
Hannam, Sir JohnPaice, James
Hargreaves, AndrewPaisley, The Reverend Ian
Hawkins, NickPatnick, Sir Irvine
Hawksley, WarrenPatten, Rt Hon John
Hayes, JerryPattie, Rt Hon Sir Geoffrey
Heald, OliverPawsey, James
Heathcoat-Amory, Rt Hon DavidPeacock, Mrs Elizabeth
Hendry, CharlesPickles, Eric
Heseltine, Rt Hon MichaelPorter, Barry (Wirral S)
Higgins, Rt Hon Sir TerencePorter, David (Waveney)
Hill, Sir James (Southampton Test)Portillo, Rt Hon Michael
Hogg, Rt Hon Douglas (G'tham)Rathbone, Tim
Horam, JohnRedwood, Rt Hon John
Hordern, Rt Hon Sir PeterRenton, Rt Hon Tim
Howard, Rt Hon MichaelRichards, Rod
Howell, Rt Hon David (G'dford)Riddick, Graham
Hughes, Robert G (Harrow W)Robathan, Andrew
Hunt, Rt Hon David (Wirral W)Roberts, Rt Hon Sir Wyn
Hunt, Sir John (Ravensbourne)Robertson, Raymond (Ab'd'n S)
Hunter, AndrewRobinson, Mark (Somerton)
Hurd, Rt Hon DouglasRoe, Mrs Marion (Broxboume)
Jack, MichaelRowe, Andrew (Mid Kent)
Jackson, Robert (Wantage)Rumbold, Rt Hon Dame Angela
Jenkin, BernardRyder, Rt Hon Richard
Jessel, TobySackville, Tom
Johnson Smith, Sir GeoffreySainsbury, Rt Hon Sir Timothy
Jones, Gwilym (Cardiff N)Scott, Rt Hon Sir Nicholas
Jones, Robert B (W Hertfdshr)Shaw, David (Dover)
Jopling, Rt Hon MichaelShephard, Rt Hon Gillian
Kirkhope, TimothyShepherd, Sir Colin (Hereford)
Knapman, RogerSims, Sir Roger
Knight, Mrs Angela (Erewash)Skeet, Sir Trevor
Knight, Rt Hon Greg (Derby N)Smith, Sir Dudley (Warwick)
Knox, Sir DavidSoames, Nicholas
Kynoch, George (Kincardine)Spencer, Sir Derek
Lait, Mrs JacquiSpicer, Sir James (W Dorset)
Lamont, Rt Hon NormanSpicer, Sir Michael (S Worcs)
Lang, Rt Hon IanSpink, Dr Robert
Leigh, EdwardSpring, Richard
Lennox-Boyd, Sir MarkSproat, Iain
Lester, Sir James (Broxtowe)Squire, Robin (Hornchurch)
Lidington, DavidStanley, Rt Hon Sir John
Lilley, Rt Hon PeterSteen, Anthony
Lloyd, Rt Hon Sir Peter (Fareham)Stephen, Michael
Lord, MichaelStewart, Allan
Luff, PeterStreeter, Gary
MacKay, AndrewSweeney, Walter
Maclean, Rt Hon DavidSykes, John
McLoughlin, PatrickTapsell, Sir Peter
Taylor, Ian (Esher)Wardle, Charles (Bexhill)
Taylor, John M (Solihull)Waterson, Nigel
Taylor, Sir Teddy (Southend, E)Watts, John
Temple-Morris, PeterWells, Bowen
Thomason, RoyWheeler, Rt Hon Sir John
Thompson, Sir Donald (C'er V)Whitney, Ray
Thompson, Patrick (Norwich N)Whittingdale, John
Thornton, Sir MalcolmWiddecombe, Ann
Townend, John (Bridlington)Wiggin, Sir Jerry
Wilkinson, John
Townsend, Cyril D (Bexl'yh'th)Willetts, David
Tredinnick, DavidWinterton, Mrs Ann (Congleton)
Trend, MichaelWinterton, Nicholas (Macc'f'ld)
Twinn, Dr IanWolfson, Mark
Vaughan, Sir GerardYeo, Tim
Viggers, PeterYoung, Rt Hon Sir George
Waldegrave, Rt Hon William
Walden, GeorgeTellers for the Noes:
Walker, Bill (N Tayside)Mr. Timothy Wood and Mr. Derek Conway.
Ward, John

Question accordingly negatived.