One Former Spouse with No Existing Right to Occupy

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

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Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers) 10:45 pm, 17th June 1996

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.