Previous Section Back to Table of Contents Lords Hansard Home Page


Baroness Darcy (de Knayth): My Lords, perhaps I may give a very warm welcome to these amendments which are the happy result of the ingenuity of the noble and learned Lord the Lord Chancellor and the persistence of the noble Baroness, Lady David, and others. I hope that perhaps, as the noble and learned Lord, Lord Archer, has said, eventually we may be able to include the group that he has just mentioned.

As very much the lay member of the Committee, so brilliantly chaired by my noble and learned friend Lord Brightman, perhaps I may say that I found the whole experience absolutely fascinating. I regret very much that we cannot include all those who have agreed to marry but

25 May 1995 : Column 1066

without any formal agreement and also the other category recommended by the Law Commission and referred to by the noble Lord, Lord Meston; namely, those who have or have had a sexual relationship. However, I understand the difficulty about lack of proof.

I very much hope that we shall soon see the introduction of a new branch of tort which would cover not only those groups but also obsessive stalkers which were referred to frequently in the evidence. Meanwhile, these amendments are extremely welcome.

The Lord Chancellor: My Lords, I am grateful for what has been said in relation to the amendments which I am proposing. As regards the last point made by the noble Baroness, Lady Darcy, perhaps I may emphasise that it was quite clear from the evidence, and in particular from the evidence of the police, that there are problems in the area covered by the Bill, in particular in relation to molestation, where they face quite severe difficulties. One should address the evil in question, the wrong that is going on. It does not matter whether one has agreed to marry or one happens to be a fellow employee. If molestation is taking place, that is what one wishes to prevent. One does not wish the law to be involved in long inquiries about the nature of the relationship when that is irrelevant to the remedy that is being sought.

The committee was cautioned about extending family homes and domestic violence law in a way which unduly distorts it in order to introduce other perhaps deserving cases. The right way to approach those deserving cases is to develop the law for them. Therefore, I very much welcome what the noble Baroness said and I believe that the law is developing in that connection.

I can see the force of the arguments used by the noble and learned Lord, Lord Archer of Sandwell, on the second branch of Amendment No. 2. The difficulty for me so far about the noble and learned Lord's proposals is that it depends on the nature of the invalidity. If people are moving towards what would be a valid marriage in this country, there are fewer difficulties. If one goes into an area where the law, for good public policy reasons, does not recognise the marriage, it is somewhat difficult in principle to recognise the agreement to marry as having any legal effect, although of course it may have practical effects.

The case to which the noble Lord, Lord Meston, referred is somewhat unusual in that there must be a certain amount of doubt about the status of the original agreement to marry and whether or not it was an agreement. Usually in those cases, marriage would be followed by cohabitation and people would be brought within the provisions of the Bill under that heading.

Obviously, there are matters to consider further. I have tried to explain my difficulties. I shall consider further what we should do and I may consult on the matter. In the meantime, I commend the amendment.

On Question, amendment agreed to.

[Amendment No. 2 not moved.]

Clause 7 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:

The Lord Chancellor moved Amendment No. 3:

25 May 1995 : Column 1067


Page 5, line 31, at end insert:
("( ) Where an agreement to marry is terminated, no application under this section may be made by virtue of section 2(1) (dd) of this Act by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.").

The noble and learned Lord said: My Lords, I explained this amendment in relation to Amendment No. 1. This puts a time limit on the matter, which I think helps, and is consistent with existing law. I beg to move.

On Question, amendment agreed to.

Clause 13 [Non-molestation orders]:

The Lord Chancellor moved Amendment No. 4:


Page 10, line 41, at end insert:
("( ) Where an agreement to marry is terminated, no application under subsection (2) (a) above may be made by virtue of section 2(1) (dd) of this Act by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 5:


After Clause 14, insert the following new clause:

Evidence of agreement to marry

(".—(1) Subject to subsection (2) below, the court shall not make an order under section 7 or 13 of this Act by virtue of section 2(1) (dd) of this Act unless there is produced to it evidence in writing of the existence of the agreement to marry.
(2) Subsection (1) above does not apply where the court is satisfied that the agreement to marry was evidenced by—
(a) the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or
(b) a ceremony of betrothal entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.").

On Question, amendment agreed to.

Clause 17 [Arrest for breach of order]:

The Lord Chancellor moved Amendment No. 6:


Page 12, line 39, at beginning insert ("if the matter is not then disposed of forthwith,").

The noble and learned Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 7, 8 and 12. These amendments represent minor and drafting amendments that have arisen following further consideration of the amendments agreed in Committee. I am grateful to some of the witnesses who drew some of those matters to our attention, in particular, Judge Fricker.

Amendments Nos. 6 and 7 clarify the powers available to the court when a person is arrested and brought before the court within 24 hours. The Bill as drafted does not exclude the powers of the court to deal with the respondent other than by remanding him or her. However, it has been suggested that the Bill could have been interpreted as meaning that the only power available to the court was the power to remand. None of us wanted that. The amendment therefore ensures that the provision cannot be interpreted as excluding the other powers of the court in dealing with the respondent, particularly the power to hear the contempt proceedings forthwith.

Amendment No. 8 to Clause 19 clarifies the position in relation to the right of a successor in title or trustees affected by a charge under Clause 8 of the Bill to apply for the variation or revocation of orders. Clause 8(1) (b) enables the person deriving the title under the owning

25 May 1995 : Column 1068

spouse to apply for an order under Clause 7. For example, a successor in title of the owning spouse might apply for an order restricting or terminating the matrimonial home rights of the other spouse. If the owning spouse's successor in title was, by virtue of Clause 8(1), the applicant or respondent in the original proceedings, he will be able to apply under Clause 19(1) for the variation or revocation of the order. However, no provision was made for a successor in title or trustees to apply for the variation or revocation of an order made against the owning spouse on the application of the other spouse. The amendment to Clause 19 is intended to permit such an application.

Amendment No. 12 to Clause 30 clarifies the definition of "relevant judicial authority" in relation to a magistrates' court in Clause 30(1). The amendment clarifies that the term "any justice of the peace" is not intended to override the current statutory provisions and rules relating to the constitution of a magistrates' court. As your Lordships will know, there are certain circumstances in which "any justice of the peace" may do so, but we became concerned that if that were used as a definition, it might be thought that we were overriding or overruling the existing provisions stating the constitutions of the court required for various subject matters. Therefore, the amendment refers to a "magistrates' court" instead of "any justice of the peace". That brings into effect the rules which would ordinarily govern the exercise of the jurisdiction. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7:


Page 13, leave out lines 8 and 9 and insert:
("(10) Where a person is brought before a court by virtue of a warrant issued under subsection (9) above and the court does not dispose of the matter forthwith, the court may remand him.").

On Question, amendment agreed to.

Clause 19 [Variation and discharge of orders]:

The Lord Chancellor moved Amendment No. 8:


Page 13, line 43, at end insert:
("( ) Where a spouse's matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse, an order under section 7 of this Act against the other spouse may also be varied or discharged by the court on an application by any person deriving title under the other spouse or under the trustees and affected by the charge.").

On Question, amendment agreed to.


Next Section Back to Table of Contents Lords Hansard Home Page