Report on Family Law

SCOTTISH LAW COMMISSION
(Scot Law Corn No 135)

Part XI The Matrimonial Homes (Family Protection) (Scotland) Act 1981

Introduction

11. 1 The Matrimonial Homes (Family Protection) (Scotland) Act 1981 implemented, with certain important changes, this Commission's report on Occupancy Rights in the Matrimonial Home and Domestic Violence. ¹ The basic policy objectives of the Act are to confer occupancy rights in the matrimonial home on the "non-entitled spouse,, who happens not to be the owner or tenant (so that he or she cannot be evicted like a mere squatter or unwelcome guest by the ,,entitled spouse" who is the owner or tenant) and to provide increased protection against domestic violence (in particular by providing for exclusion orders, and interdicts with a power of arrest attached). These basic policy objectives were strongly endorsed when the Bill was going through Parliament. ² Research on the operation of the Act ³ and the responses to our discussion paper show that the basic objectives of the Act are very widely accepted. There is, in our view, no question of repealing the Act entirely or of altering its basic structure.

11.2 Certain provisions of the 1981 Act have, however, been the subject of criticism and have given rise to practical difficulties. It is with these provisions, rather than the basic policy or structure of the Act, that we are here concerned. We begin with the provisions on dealings with third parties.

Dealings with third parties

11.3 Introduction. Some protection against dealings, such as a sale of the home, by the entitled spouse is obviously necessary. Otherwise he or she could sell the home to an accomplice and the purchaser could evict the non-entitled spouse. There would be little point, for example, in one spouse's obtaining an exclusion order if the excluded spouse could immediately defeat occupancy rights by selling the home. The Commission's report on Occupancy Rights in the Matrimonial Home and Domestic Violence ⁴ therefore recommended a scheme for the protection of a spouse's occupancy rights against dealings, such as a sale, by the other spouse. In the case of owner-occupied houses, the Commission's scheme was based on registration of a matrimonial home notice in the Register of Sasines or the Land Register. If, but only if, a spouse had registered such a notice, he or she could have any subsequent dealing struck down within certain, fairly short, time limits. This scheme was designed to enable protection to be obtained against transactions designed to defeat occupancy rights while confining protection to cases where it was likely to be needed.

11.4 The Commission's scheme, which was admittedly likely to be more complicated in its practical operation than the above summary suggests, was not favoured by the government. The following explanation was given in the House of Commons.

"The reasons why we chose not to exercise the matrimonial notice option are basically twofold. First, the Law Commission's view was that if a spouse had lodged a matrimonial notice which indicated her occupancy rights, then that should be an entirely overriding right which gave her total protection as regards occupancy of her home. There are many attractions in this approach, but I think the biggest single unattractive aspect is that it is unlikely that other than a relatively small minority of spouses would have taken advantage of such an opportunity, because of an unawareness of the opportunities existing under the law, but, more importantly, because spouses are unlikely to conceive of the need for such precautions as long as the marriage is working well. By the time the marriage has broken down, it might be too late to start thinking in terms of the lodging of a matrimonial notice. Therefore, it seems sensible and appropriate to have a wider-ranging provision, which will give a high level of protection to the vast majority of spouses, whether or not they have at an earlier date, when the marriage was working quite successfully, anticipated the problems that might arise in the event of marital breakdown.

That, therefore, was the main reason why the Government did not feel that the matrimonial notice approach was suitable. There are also the additional bureaucratic requirements that such a procedure would involve. It would involve very significant increases in staffing in the Department of Registers in terms of dealing with the lodging and processing of matrimonial notices. These and other implications which I mentioned earlier led the Government to conclude that a different approach, as outlined in the Bill, would be suitable." ⁵

11.5 Existing law. The scheme preferred by the government, and now enacted, conferred general protection against dealings, without any need for registration of a notice, and did not provide for dealings in fraud of occupancy rights to be struck down or set aside. Instead the spouse's occupancy rights can continue to be exercised after the dealing and the person acquiring the home or an interest in it is not entitled to occupy it. This achieved the objective of protection without registration but it means that occupancy rights are a potential problem in every conveyancing transaction. The purchaser of any house has to be sure that there are no occupancy rights or that an appropriate consent or renunciation or dispensation is obtained, and cannot rely on the registers. Even a purchaser from an unmarried person has to be sure that the person is unmarried. To make the position of purchasers more tolerable the 1981 Act provides that a purchaser who acts in good faith is protected if there is produced to him or her by the seller

(i) an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not or were not at the time of the dealing a matrimonial home in relation to which a spouse of the seller has or had occupancy rights; or

(ii) a renunciation of occupancy rights or consent to the dealing which bears to have been properly made or given by the non-entitled spouse". ⁶

There is a similar protection for heritable creditors who may, if conditions similar to the above are fulfilled, exercise their normal rights (e.g. their rights to sell on default) under the security and may also apply to 'a court for an order requiring the non-entitled spouse to make any payment due by the entitled spouse in respect of the loan. 7

11.6 A further protection for purchasers was added in 1985. ⁸ It was provided that the non-entitled spouse's protection against a dealing would not apply if

"the entitled spouse has permanently ceased to be entitled to occupy the matrimonial home, and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home". ⁹

This means that the purchaser of a house from someone who has owned it, and had exclusive occupation of it, for five years or more does not need to be concerned about the occupancy rights of spouses of former proprietors ¹⁰. It also protects the purchaser from an entitled spouse against a delayed assertion of occupancy rights if, for example, there has been a false affidavit or forged consent.

11.7 The protection of occupancy rights against dealings applies also to leased property. If the spouse who is the sole tenant assigns or renounces the tenancy without the consent of the other spouse (or a renunciation or a dispensation) the other spouse's occupancy rights are not prejudiced by the dealing. This is a simpler system than that recommended by the Commission in 1980, which would have required the non-entitled spouse to give notification to the landlord of his or her occupancy rights. It does, however, mean that a landlord may find that the property is occupied by someone who is not a tenant and who has rights but no corresponding obligations. ¹¹

11.8 We have referred to the obtaining of a dispensation. This is provided for in section 7 of the 1981 Act which enables a court to make an order dispensing with the consent of a non-entitled spouse to a dealing which has taken place or a proposed dealing if, among other things, the consent is unreasonably withheld. There is a problem about how much specification must be given of a proposed dealing. ¹² We return to this later. ¹³

11.9 Results of consultation. In the discussion paper we sought views on various options, including a radical change of approach, for reform of the provisions on dealings. ¹⁴ The prevailing view was that the existing balance between protection of the non-entitled spouse and protection of third parties was broadly right and that a set of minor reforms to remove unnecessary irritations and inconveniences, rather than a completely new start, was all that was required. The impression we gained from consultees was that the requirements of the 1981 Act had been absorbed into ordinary conveyancing practice and that a radical new departure would be unwelcome. In these circumstances we have confined ourselves to recommending minor amendments which would be designed to avoid a number of conveyancing difficulties without disturbing the existing scheme of the Act or significantly affecting the protection given to the non-entitled spouse.

11.10 Spouses of former owners. One modification to the existing provisions which would have significant benefits, particularly in relation to registration of title, would be to reduce or eliminate the need to be sure that there- are no occupancy rights of spouses of former owners (i.e. owners prior to the person now selling the property) liable to interfere with vacant possession. There is some doubt whether, under the existing law, the spouse of a former owner could ever assert occupancy rights. Clearly the former owner is no longer an entitled spouse and therefore his or her spouse no longer has occupancy rights under section 1 of the Act. Any claim by the spouse of a prior owner must be based on section 6(1) of the Act which provides that "the continued exercise" of occupancy rights

"shall not be prejudiced by reason only of any dealing of the entitled spouse relating to that home"

and that a third party

"shall not by reason only of such a dealing be entitled to occupy that matrimonial home or any part of it. ". (Emphasis added.)

A sale by someone who has bought from an entitled spouse is not a dealing by or of the entitled spouse. A spouse whose claim to occupy the home is challenged or resisted by a subsequent purchaser is not prejudiced by reason only of the entitled spouse's dealing but at least partly by the fact that there has been a subsequent sale by someone other than the entitled spouse. It may perhaps be thought unlikely that the legislature, in enacting a family protection measure, would have intended that the husband or wife of a former owner should be able to come along and put a family out of the house which they had acquired in good faith and at considerable cost, or that, in enacting provisions which were designed to avoid extra demands on the staff at Register House, it would have intended that checks would have to be made in relation to prior owners in connection with registration of title. ¹⁵ Nonetheless, the official view appears to be that spouses are protected not only against dealings by the entitled spouse but also against subsequent dealings by other people. This causes a great deal of trouble and expense in relation to registration of title. ¹⁶. The position is relieved to some extent by section 6(3)(f) of the 1981 Act ¹⁷ Which says that section 6 does not apply if

"the entitled spouse has permanently ceased to be entitled to occupy the matrimonial home, and at any time thereafter a continuous period of 5 years has elapsed during which the non-entitled spouse has not occupied the matrimonial home. ".

11.11 The obvious remedy for the difficulties caused by the doubt about whether section 6 affects subsequent purchasers would be to make it clear that it does not provided that they are in good faith. This could be done by adding a provision to section 6 to the effect that the section does not affect third parties who have acquired the home, or

an interest in it, in good faith and for value from anyone other than the entitled spouse or who derive title from any such acquirer. Section 6(3) (f) would still have a role to play in protecting the first purchaser from an entitled spouse against a delayed assertion of occupancy rights by the seller's spouse. The period of five years seems too long, however. The object of the Act is to protect spouses from eviction or the threat of eviction, not to enable them to evict others from houses which were formerly the matrimonial home. We would suggest that a period of 2 years would be quite sufficient to protect a spouse who has been temporarily absent.

11. 12 We do not believe that amendments on the above lines would significantly reduce the protection afforded by occupancy rights to spouses in occupation of the matrimonial home, or only temporarily absent from it. What they would do would be to prevent spouses who had long ceased to occupy a home from putting out bona fide purchasers. That seems to us to be the right policy to adopt in a provision designed to protect occupancy rights. There is no reason why the occupancy rights of the bonafide purchaser and his or her family should be regarded as less worthy of protection than those of the spouse of a former owner.

11. 13 Proposed dealings. Another amendment which could usefully be made to the existing provisions is a clarification of what is meant by a "proposed dealing". In the case of Fyfe v Fyfe, ¹⁸ the sheriff principal held that

"a proposed dealing' requires that a stage of negotiations has. been reached in which proposals in regard to price and other conditions are being discussed"

and that

"the consent of the non-entitled spouse must specifically relate to a particular dealing or proposed dealing".

He explained that until the terms of such a dealing were known a court could not determine whether the non-entitled spouse was reasonably or unreasonably withholding consent. Accordingly, the husband's application for a dispensation in relation to a proposed sale of the home - was held to have been properly refused by the sheriff, as matters had only reached the stage where he wished to put the house on the market, knowing that there were several prospective purchasers.

11. 14 This view of the meaning of "proposed dealing" is highly inconvenient for entitled spouses wishing to sell the house in circumstances where it is likely that a court would eventually dispense with consent. The seller wants to be able. to make an offer to sell with as few difficult conditions as possible attached. A prospective purchaser is likely to be discouraged if it is a condition of the sale that a court dispenses with the spouse's consent. From both seller's and purchaser's points of view it is clearly desirable that a court should be able to dispense with the spouse's consent before the house is put on the market. Provided that the dispensation relates to a sale at not less than a certain price and within a specified time we can see no risk of prejudice to the non-entitled spouse. A suggestion on these lines was put to us by the Law Society of Scotland in October 1989. The Society also suggested a similar set of provisions in relation to the grant of a heritable security and this too seems right.

11. 15 Court's powers on refusing to dispense with consent. A further amendment might be to give the court power, on refusing to dispense with the consent 'Of the non-entitled spouse to a dealing, to order the non-entitled spouse to make reasonable payments to the owner of the house in lieu of rent and to attach such other conditions to the occupancy as it thinks fit. The effect of refusing to dispense with consent is that the non-entitled spouse can continue to occupy the home. This could cause hardship enough to the entitled spouse or other owner of the house. It would se em to be completely unjustifiable that the continued occupation should be free of charge. The prospects of recovery under common law principles of recompense ¹⁹ would be poor or non-existent where the occupancy is by virtue of a statutory right and where the statute clearly envisages that occupancy will be gratuitous.

11.16 Affidavits. Section 6(3)(e)(i) of the 1981 Act protects a purchaser in good faith if the purchaser has received from the seller

,,an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not a matrimonial home in relation to which a spouse of the seller has occupancy rights."

There is a similar provision in section 8 for the protection of heritable creditors. The need to swear or affirm an affidavit (which can be done only before a notary public) can cause considerable inconvenience and irritation. We received representations from the Joint Consultative Committee of the Registers of Scotland Executive Agency and the Law Society of Scotland to the effect that the legal requirement for swearing or affirming an affidavit before a notary public should be relaxed. The Committee mentioned in particular that

"in rural areas people sometimes had to travel considerable distances to avail themselves of a Notary Public's services: in one instance a young man had been injured in a road accident while undertaking such a journey."

The requirement was

"generally regarded as undesirable and increased the costs of conveyancing for those in outlying areas."

The Committee suggested to us that we should include an appropriate recommendation for amendment in our current exercise.

11. 17 We have a lot of sympathy with this suggestion. It fits in with our preferred policy of keeping the basic structure of the 1981 Act but removing as many sources of expense, inconvenience and irritation as possible. We considered several approaches. One would be to allow any solicitor or qualified conveyancer to act as a notary public in relation to an affidavit under sections 6 or 8. That, however, would not solve the problem of sellers in rural areas who might still have to journey to the nearest sizeable town in order to swear or affirm an affidavit. Another possible approach would be to allow affidavits to be sworn or affirmed before a justice of the peace. Again, however, that could cause inconvenience without, perhaps, providing much real protection. The most promising approach, it seemed to us, would be to replace the affidavit by a written declaration subscribed by the seller, and to ensure that the declaration came within the scope of the False Oaths (Scotland) Act 1933. Section 2 of the 1933 Act provides that

"If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made

(a) . . .

(b) in a . . . declaration ... which he is authorised or required to make ... by, under, or in pursuance of any public general Act of Parliament for the time being in force ...

he shall be guilty of a crime and offence and shall be liable on conviction thereof to imprisonment for any term not exceeding two years, or to a fine, or to both such imprisonment and fine."

The result would be that the inconvenience and expense of swearing or affirming an affidavit before a notary public would be completely removed. A criminal sanction would, however, remain. Any forms sent out for signature by the seller's solicitor could contain a prominent statement warning that a false declaration could be a serious criminal offence.

11. 18 A minor alteration suggested to us was that the protection of the affidavit in section 6 should extend to all transfers for value. At present it is confined to sales. This seems to us to be a sensible suggestion and, subject to replacing the references to affidavits by references to the new form of statutory declaration, we endorse it.

11. 19 Dealings with tenancies. We have concentrated until now on house sales because that is where the minor irritations caused by the existing law are most apparent. There are also, however, problems in relation to tenancies. Under the existing law a non-entitled spouse's occupancy rights do not prevent the tenant spouse from terminating the tenancy without the other spouse's consent. If he or she does terminate the tenancy ²⁰ there is then no tenancy left to transfer. So the non-entitled spouse cannot obtain a tenancy transfer order under section 13 of the 1981 Act. ²¹ However, the continued exercise of that spouse's occupancy rights is not prejudiced by the other spouse's termination of the tenancy. So the spouse continues in occupation, but not as a tenant-a somewhat anomalous situation, which makes it impossible to apply any statutory provisions regulating tenancies. If the owner of the house wishes to terminate the occupancy rights and cannot obtain the occupying spouse's consent or agreement he or she would have to ask the court to dispense with the non-entitled spouse's consent to the dealing under section 7 of the 1981 Act. ²² In practice a new tenancy would often be granted to the occupying spouse who would then become "entitled" and would no longer have rights pertaining only to a non-entitled spouse. This would, however, require the occupying spouse's agreement and if that agreement is withheld the former landlord is in an awkward position.

11.20 It is unsatisfactory, both from the point of view of the occupying spouse and from the point of view of the landlord, to leave the non-entitled spouse -in a legal limbo. A clarification of the legal position was strongly urged by Scottish Women's Aid, who pointed out that the problem was one which arose frequently in practice. They gave the following two case histories from their recent experience.

(1) Mrs. A went to stay in a Women's Aid refuge because of Mr. A's violent behaviour. While she was away Mr. A went to the District Council, told them his wife had deserted him and gave up the tenancy which was in his sole name. As soon as Mrs. A heard of this from a relative she went to the District Council who said the house had already been re-allocated. Because Mrs. A had children she was allocated another house under the Homeless Persons provisions, but it was a less desirable house in a less desirable area.

(2) Mrs. B was deserted by her husband who went to stay with his mother. Their council house was in Mr. B's name. Some weeks later the children of the family went to live with Mr. B who approached the District Council for housing. They refused as he already had a house (the matrimonial home). However they accepted from him the termination of the tenancy so that they could rehouse him and the children. They have refused to grant the tenancy of the matrimonial home to Mrs. B on the grounds that she is not in "priority need"' because she does not have the children. Nevertheless she has occupancy rights in the house and is refusing to move out. She cannot apply for a transfer of tenancy under the Act because there is no tenancy to transfer. The situation is equally unsatisfactory for Mrs. B and for the District Council."

11.21 One suggestion made to us on consultation was that, if the tenant gives up the tenancy without the consent of the non-entitled spouse, the landlord should be bound to grant a tenancy to the non-entitled spouse. This, however, is not a complete answer. The non-entitled spouse may not consent to a tenancy, which would involve obligations not involved in just exercising occupancy rights. Another suggestion was that the court should be able to transfer the tenancy to the non-entitled spouse under the tenancy transfer provisions of section 13 of the 1981 Act. However, there is the logical difficulty that there is no tenancy left to transfer. Even if this is surmounted by deeming the tenancy to continue for the purposes of section 13 there is the practical difficulty that the non-entitled spouse might not wish to apply for a tenancy transfer but might prefer to sit tight and exercise occupancy rights. It seems to us that what is needed is a provision deeming the non-entitled spouse, so long as he or she is entitled to continue to exercise occupancy rights, to be a tenant under a tenancy in the same terms (apart from the identity of the tenant) as the terminated tenancy. He or she would be treated as a tenant for such purposes as liability for rent and recovery of possession. This would clarify the legal position of both the spouse and the landlord.

11.22 Other minor amendments in relation to dealings. It has been suggested that a curator bonis or a person acting under a power of attorney should be allowed to execute affidavits, consents or renunciations for the purposes of the 1981 Act. ²³ We endorse this suggestion, subject to replacing affidavits by the new form of declaration referred to above.

11.23 Recommendations on dealings. Our recommendations for minor amendments to the provisions on dealings in the 1981 Act are as follows.

(b) The period referred to in section 6(3)(f) of the 1981 Act should be reduced from 5 years to 2 years.

(c) A court should be able to dispense with consent to a proposed dealing under section 7 of the 1981 Act notwithstanding that no negotiations have yet been entered into or concluded, provided that the dispensation relates to

(i) a sale at not less than a specified price and within a specified time from the date of the court's order, or

(ii) the grant of a heritable security for a loan of not more than a specified amount to be executed within a specified time from the date other court's order.

(d) A court which refuses to dispense with a non-entitled spouse's consent to a dealing should have power (i) to order that spouse, if he or she is in occupation of the home, to make payments in lieu of rent and (ii) to attach to the refusal of consent such other conditions relating to the occupation of the home by the non-entitled spouse as it thinks fit.

(e) Section 6(3)(e) of the 1981 Act should apply to all transfers for value, not merely sales.

(f) The references to affidavits in section 6(3)(e) and section 8(2A) of the 1981 Act should be replaced by references to written declarations (attracting the penalties of the False Oaths (Scotland) Act 1933) subscribed by the transferor of the property or grantor of the security.

(g) Where a dealing consists of a termination by the entitled spouse of his or her tenancy of the matrimonial home then, if section 6 of the 1981 Act applies, the non-entitled spouse should be deemed, so long as he or she is entitled to continue to exercise occupancy rights, to be a tenant of the home under a tenancy in the same terms (apart from the identity of the tenant) as the terminated tenancy.

(h) (i) An attorney acting under a power of attorney should be permitted to execute a declaration, consent or renunciation for the purposes of the 1981 Act.

(ii) The curator bonis of an incapax should be permitted to execute a declaration, consent or renunciation for the purposes of the 1981 Act.

(Draft Bill, clause 26 and Schedule l.)

Prescription of occupancy rights

11.24 There is no provision in the 1981 Act for occupancy rights, in a question between the spouses, to be lost by the passage of time even if the spouses have been separated. Section 6(3)(f) of the 1981 Act, which we have considered above, operates only to disapply the protection against dealings in a case where the entitled spouse has sold the house, or otherwise ceased to be entitled to occupy it. It has no application where the entitled spouse continues to occupy the house. It follows that a spouse who owns the matrimonial home, or is the tenant of it, could be exposed to an assertion of occupancy rights by the other spouse even after the couple had been separated for, say, 15 years. It is probable that the long negative prescription of 20 years would apply ²⁴ but this seems excessively long.

11.25 It would be dangerous to allow occupancy rights to be lost by a short period of non-occupation and separation, as a violent spouse might terminate the other spouse's rights by making him or her terrified to return. We suggested in the discussion paper that a period of a year ought to suffice to enable a spouse to obtain legal advice with a view to seeking an exclusion order ²⁵ and that the occupancy. rights of a non-entitled spouse in a home should terminate if the spouses had been separated for a continuous period of one year during which period the non-entitled spouse had neither occupied the home nor been engaged in court proceedings to assert his or her occupancy rights. This would protect a spouse from an assertion of occupancy rights by a separated husband or wife after many years, but would ensure that a non-entitled spouse would not lose occupancy rights merely because the spouses had been living together elsewhere for a year or more.

11.26 There was a mixed reaction to this proposal. Almost all of those who commented on it agreed that there should be some prescriptive period. However, some consultees thought that the period of one year was too short. One consultee thought that one year was too long and that a period of 6 months would suffice. Some consultees thought that our provisional proposal could force spouses into hasty court actions to protect their occupancy rights before the year expired. Another consultee pointed out that occupancy rights provided a way of preventing disposal of the matrimonial home pending a divorce and that this function would no longer be performed if they prescribed too soon after separation. Two consultees expressed anxiety that police officers called to a scene of domestic violence could have great difficulty in knowing whether occupancy rights had prescribed.

11.27 We found the comments on this proposition very helpful. The one thing that seems clear is that there should be some prescriptive period. It is thoroughly unsatisfactory that, say, a wife who is deserted by her husband should be liable to be faced by an assertion of occupancy rights by him ten or fifteen year's later. We accept, however, that the suggested period of one year might be considered too short. The choice of a suitable period must be arbitrary, within a certain range, but we consider that a period of two years would be about right. A spouse who has been separated and living elsewhere for two years is unlikely to have a live claim for an exclusion order and, given that he or she has not been resident in the home for that period, the risk of difficulties for police officers called to deal with domestic disputes would be minimal. The argument about preventing disposals prior to divorce is not conclusive. The primary purpose of occupancy rights is to prevent a spouse from being evicted like a mere invitee, not to preserve assets for division on divorce. There are other legal remedies to prevent or set aside transactions likely to defeat a spouse's claims for financial provision on divorce. ²⁶ Nor do we think that there would be any encouragement of unnecessary court actions. Either a spouse wishes to seek an exclusion order, or leave to enter under section 1(3) of the Act, or he or she does not. If he or she does wish to seek such a remedy there are, in any event, strong incentives to do so soon after the precipitating events rather than after a long period of separation. If the prescriptive period were two years it would, we think, be unnecessary to provide for interruption by court action within that period. There would therefore be no incentive to begin proceedings which had no real hope of success just to keep occupancy rights in being for some time longer.

11.28 We recommend that

56. The occupancy rights of a non-entitled spouse in a matrimonial home should terminate if the spouses have been separated for a continuous period of two years or more during which period the non-entitled spouse has not occupied the home.

(Draft Bill, clause 25.)

Exclusion orders

11.29 We received a suggestion that section 4(3)(a) of the 1981 Act should be repealed as unnecessary. This provision qualifies the court's obligation to grant an exclusion order if, on the hypothesis that both spouses were in the home, ²⁷ it appears to the court that

"the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child."

Section 4(3)(a) introduces an element of discretion by providing that a court is not to make an exclusion order if it appears to the court that the making of the order would be unjustified or unreasonable

"(a) having regard to all the circumstances of the case including [various matters such as the conduct, needs and financial resources of the spouses]."

It has sometimes been suggested that if protection is necessary it will never be unjustified or unreasonable to make an exclusion order. ²⁸ This, however, ignores the point that protection may be necessary on the assumption that both spouses are in the house and yet quite unjustified and unreasonable in the actual circumstances of the case. Without section 4(3)(a), for example, a court would have to make an exclusion order against a wife whose conduct would be injurious to her husband's health if he returned to the home, even if he was living elsewhere in perfectly satisfactory accommodation and had no need to return to the home. We have no doubt that section 4(3)(a) must remain.

Interdicts

11.30 Section 15 of the 1981 Act provides for a power of arrest to be attached to certain interdicts in the matrimonial context. This has proved to be a useful weapon in the fight against domestic violence, often making the task of the police very much easier. ²⁹ The interdicts to which a power of arrest may (or, in some cases, must) be attached are described in the Act as "matrimonial interdicts" and a "matrimonial interdict" is defined in section 14(2) as

,,an interdict including an interim interdict which

(a) restrains or prohibits any conduct of one spouse towards the other spouse or a child of the family, or

(b) prohibits a spouse from entering or remaining in a matrimonial home or in a specified area in the vicinity of the 'Matrimonial home." ³⁰

It has been suggested by the Law Society of Scotland ³¹ and by Scottish Women's Aid ³² that this definition is too narrow. Paragraph (b) does not apply, for example, to a house bought or rented by a spouse after separation which is not a matrimonial home, ³³ or to a refuge where a spouse is staying temporarily, or to a spouse's place of work, or to the school which the parties' children attend. It may be argued that in all of these cases protection may be necessary. On the other hand an interdict without a power of arrest could be obtained against molestation in these places and there is an argument that attachment of a power of arrest should not be used too widely because it might unduly restrict a citizen's freedom of movement. In a small village, for example, a person who could not go near a house at one end of the main street, a shop where his or her spouse worked in the middle, or a school at the other end might be very severely restricted indeed. Against this it could be said that a court, if it had enough discretion, ³⁴ would not grant such an interdict and that there would be no harm in at least giving the power to do so in appropriate cases.

11.31 On consultation there was considerable support for an extension of the definition of matrimonial interdict on the lines suggested. Indeed one consultee suggested extending the wording of section 14(2)(b) (quoted above) to cover, on cause shown, any specified area. This, however, would be too wide. It would enable a power of arrest to be attached to any interdict against any married person prohibiting him or her from entering or remaining in any place-such as a factory which was the subject of an industrial dispute. There has to be some link in section 14(2)(b) between the place and the applicant spouse. A few consultees mentioned that in practice interdicts under section 14(2)(a) against "conduct" can be so framed as to cover a very wide range of situations. This is true. Nonetheless there may be cases where it is mere presence in, for example, a 'street outside a school which needs to be prohibited rather than any conduct towards the spouse or child.

11.32 The widening, of the scope of matrimonial interdicts raises a question about the way in which section 14(1) of the 1981 Act is expressed. Section 14(1) provides that

"It shall not be incompetent for the court to entertain an application by a spouse for a matrimonial interdict by reason only that the spouses are living together as man and wife."

The negative way in which this is expressed leaves it open to someone to argue that a matrimonial interdict is incompetent for some other reason-for example, that the conduct to be prohibited is not a legal wrong. It is not a legal wrong, for example, to stand in a street outside a school. So applications for some of the extended interdicts now to be available could be opposed on this ground. What is needed is a positive statement that the court may grant matrimonial interdicts, as defined.

11.33 It would clearly be wrong, as the Court of Session has recognised, ³⁵ to allow an application for a matrimonial interdict to be used as a back door method of obtaining an exclusion order. A recasting of section 14(1) in positive terms would make it necessary to provide expressly that a matrimonial interdict could not be used in this way. ³⁶ Where the effect of such an interdict would be to exclude an entitled spouse, or a spouse with occupancy rights, from the matrimonial home it ought to be incompetent to grant it unless it is ancillary to (a) an exclusion order or (b) a refusal of leave by a court to exercise occupancy rights in the circumstances mentioned in section 1(3) of the 1981 Act. ³⁷ There is no objection to an interdict being used to exclude from the home a non-entitled spouse who has renounced occupancy rights. A wife, for example, who has separated from her husband because of his violence may agree to re-admit him to the house of which she is owner or tenant only if he renounces occupancy rights. If he then becomes violent again she should be able to obtain any necessary matrimonial interdicts even if the effect is to exclude him from the home. Taking the above three points on the scope of section 14 together, we recommend that

57.(a) Section 14(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 should confer an express power to grant matrimonial interdicts.

(b) It should be made clear in the Act that a matrimonial interdict under section 14(1) cannot be used as an easy alternative to an exclusion order. A matrimonial interdict should not be available so as to exclude an entitled spouse, or a spouse with occupancy rights, from the matrimonial home unless the interdict is ancillary to an exclusion order or to a refusal by the court of leave to exercise occupancy rights in the circumstances mentioned in section 1(3) of the Act.

(c) The definition of "matrimonial interdict" in section 14(2) of the. 1981 Act should be extended so that paragraph (b) extends not only to a matrimonial home but also to any home or other premises occupied by the applicant, to the applicant's place of work and to the school attended by any child in the applicant's care.

(Draft Bill, clause 27(1).)

Powers of arrest

11.34 It has already been mentioned that a power of arrest must be attached to matrimonial interdicts in some cases whereas in others the court has some discretion. This is governed by section 15(1) of the 1981 Act which provides as follows

"The court shall, on the application of the applicant. spouse, attach a power of arrest

(a) to any matrimonial interdict which is ancillary to an exclusion order, including an interim order under section 4(6) of this Act;

(b) to any other Matrimonial interdict where the non-applicant spouse has had the opportunity of being heard by or represented before the court, unless it appears to the court that in all the circumstances of the case such a power is unnecessary."

11.35 In the discussion paper we referred to a suggestion that the court should be bound to attach a power of arrest to all matrimonial interdicts. ³⁸ We had reservations about this suggestion. It seemed to us to be wrong to require a court to attach a power of arrest even in a case where it appeared to the court to be unnecessary. Most consultees agreed with our provisional view that the attachment of a power of arrest should not be mandatory in all cases. Some consultees suggested, however, that it should be made clear in section 15(1)(b) that the onus is on the non-applicant spouse to show that a power of arrest is unnecessary. We recommend the adoption of this useful suggestion.

58. It should be made clear in section 15(1)(b) of the 1981 Act (power of arrest) that the onus is on the non-applicant spouse to show that a power of arrest is unnecessary.

(Draft Bill, clause 27(2).)

11.36 Section 15(3) of the 1981 Act provides that

"If . . . a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant spouse if he has reasonable cause for suspecting that spouse of being in breach of the interdict.

There have been suggestions that "may" should be changed to "shall" in this provision. ³⁹ We did not support this suggestion in the discussion paper. It did not seem to us to be sensible to place a police constable under a legal obligation to arrest a man or woman in circumstances where there was no need for that to be done. It seemed to us to be unwise to insist on automatic arrest in all cases, even if the breach was trivial and had not upset the "protected" spouse, or even if the breaching spouse had left the scene in a case where the only breach was passing along a street. An obligation to arrest would be particularly unreasonable, we thought, if the breach (for example, being in the matrimonial home) had occurred at the invitation of the protected spouse. It would bring the law, and the police, into disrepute to force a constable to make an arrest if he or she observed the interdicted spouse and the protected spouse emerging happily from the matrimonial home after a mutually arranged visit. ⁴⁰ There could also be cases where it was a matter of doubt whether there had been a breach of interdict, and where a duty to arrest would place a constable in a difficult position. ⁴¹ The imposition of a statutory duty to arrest would also raise the question of the sanction for breach of that duty. Most consultees agreed with our provisional view that the police should continue to have a discretion in this area. We therefore recommend that

59. Where a power of arrest is attached to an interdict the police should continue to have a discretion as to whether or not to arrest where a breach is reasonably suspected.

11.37 Under the existing law a power of arrest attached to a matrimonial interdict ceases to have effect on divorce. ⁴² Moreover, a power of arrest cannot be attached to an interdict against molestation of one former spouse by the other. ⁴³ There have been suggestions that the power of arrest attached to a matrimonial interdict should continue after divorce and that interdicts with attached powers of arrest should be- available after divorce.

11.38 We agree with these suggestions and so did almost all those who commented on this question. There is clearly something artificial about a cut-off on divorce. A divorce changes the legal position but not the factual position and a need for protection may well continue. On the other hand there is a case for not continuing powers of arrest indefinitely. They are liable to get out of date because of changed circumstances, such as a move by the protected spouse to a new address. To clog up police records with dead interdicts also seems undesirable and not in the interests of those in need of current protection. We suggested in the discussion paper that powers of arrest should terminate five years after the date when the power was granted, but should continue for the full five years (unless previously recalled) not withstanding the termination of the marriage. ⁴⁴

11.39 There was general agreement, as we have noted, with the idea that a power of arrest should not terminate on divorce. There were, however, differing views as to the appropriate duration of such a power. Some consultees thought that five years was a reasonable period. Others thought it was too long. One group suggested that 6 months would be long enough, presumably on the view that a power of arrest is meant to deal with a situation of temporary stress and danger and should not continue any longer than is necessary. Another group, however, suggested that the power of arrest should continue indefinitely, on the view that the interdicted spouse could always seek a recall. Another suggestion was that the power should last for 3 years unless renewed on cause shown. It seems to us that this last suggestion strikes the right balance between terminating powers of arrest which are no longer required or appropriate and preserving protection for a reasonable length of time. We accordingly recommend that

60. A power of arrest attached to a matrimonial interdict should not cease to have effect on the termination of the marriage but should cease to have effect, whether or not there is a divorce, three years after the date when the power was granted, unless it has been recalled, or renewed on cause shown, within that time.

(Draft Bill, clause 27(3).)

11. 40 Almost all of those who commented on the question thought that the definition of matrimonial interdict should be wide enough to cover an interdict against molestation of a former spouse or against being or remaining in or near certain places connected with the former spouse, such as the former spouse's home or place of work or the school attended by a child in his or her care. We therefore recommend that

61. The definition of "matrimonial interdict" should be extended to cover a corresponding interdict for the protection of a former spouse.

(Draft Bill, clause- 27(1).)

11.41 The 1981 Act provides quite a complicated procedure for the situation where a person has been arrested under a power of arrest attached to a matrimonial interdict. If the arrested person has not been liberated by the police (on the ground that there is no likelihood of violence to the other spouse or any child of the family) ⁴⁵ and the procurator fiscal has decided that no criminal proceedings are to be taken then the arrested person must, wherever practical, be brought before a sheriff by the end of the first day after the arrest (not being a Saturday, Sunday or court holiday). ⁴⁶ Before the person is brought before the sheriff the procurator fiscal must take all reasonable steps to intimate to the other spouse and his or her solicitor that no criminal proceedings will be taken. ⁴⁷ The purpose of this is to enable the other spouse to decide whether or not to take civil proceedings for breach of interdict. The procedure once the arrested person is brought before the sheriff is regulated by section 17(5) of the 1981 Act, which provides as follows.

"(5) On the non-applicant spouse being brought before the sheriff under subsection (2) above, the following procedure shall apply

(a) the procurator fiscal shall present to the court a petition containing--

(i) a statement of the particulars of the non-applicant spouse;

(ii) a statement of the-facts and circumstances which gave rise to the arrest; and

(iii) a request that the non-applicant spouse be detained for a further period not exceeding 2 days;

(b) if it appears to the sheriff that

(i) the statement referred to in paragraph (a) (ii) above discloses a prima facie breach of interdict by the non-applicant spouse;

(ii) proceedings for breach of interdict will be taken; and

(iii) there is a substantial risk of violence by the non-applicant spouse against the applicant spouse or any child of the family,

he may order the non-applicant spouse to be detained for a further period not exceeding 2 days;

(c) in any case to which paragraph (b) above does not apply, the non-applicant spouse shall, unless in custody in respect of any other matter, be released from custody;

and in computing the period of two days referred to in paragraphs (a) and (b) above, no account shall be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require 9 to be raised."

11.42 The procedure outlined above is not effective. ⁴⁸ Procurators fiscal often encounter considerable practical difficulties in making intimation to the other spouse and to his or her-solicitor, as required by section 17(4) of the 1981 Act, ⁴⁹ and often have to spend a great deal of time and effort to no effect. Solicitors often encounter difficulties in obtaining instructions from their clients, within the short time available, in relation to the taking of proceedings for breach of interdict. ⁵⁰ In practice there is rarely, if ever, adequate information before the sheriff as to whether or not proceedings for breach of interdict are to be taken. Unless it appears to the sheriff that proceedings for breach of interdict will be taken the arrested person must be released from custody. ⁵¹ We have been informed by one sheriff that he has never been able to grant a petition presented under section 17(5) because there has never been information before him indicating that proceedings for breach of interdict would be taken. The Procurator Fiscals Society told us that they had been unable to find a depute who had ever been present when a sheriff was able to grant a petition under section 17(5). Even if a petition were granted, the further period of two, days (excluding Saturday and Sunday) is hardly long enough in practice to enable proceedings for breach of interdict to be brought before a court. ⁵² It is certainly not long enough to permit the determination of breach of interdict proceedings if the breach is denied and a proof has to be fixed. ⁵³

11.43 In the discussion paper we referred to various options for reform of the procedure for dealing with a person arrested under a power of arrest attached to a matrimonial interdict. ⁵⁴ One option was to make any breach of a matrimonial interdict with a power of arrest attached to it a criminal offence. There was some support for this on consultation, but also strong opposition. It is not a new suggestion. We consulted on it at the time of our earlier work on occupancy rights and found then that it was strongly opposed, mainly on the ground that it would cause an undesirable confusion of civil and criminal remedies. The creation of a new criminal offence (which might consist of simply being in a street or building) is not something to be taken lightly and, given the opposition to this option, we cannot recommend it.

11.44 We suggested in the discussion paper that another option might be simply to give the police power to detain the arrested person for up to 48 hours. There would be an obligation to report the circumstances to the procurator fiscal. The detained person would have the normal rights of a detained person under section 3(1) and (2) of the Criminal Justice (Scotland) Act 1980 (intimation to named person). There was a lot of support for this option but also opposition.

The police associations which commented were opposed to the suggestion on the grounds that it was contrary to principle to allow detention of this type where there was no breach of the criminal law and no control by a court - and that it would -place the police in an invidious position. Other consultees were also concerned that the police would be placed in an anomalous position and that there would be a threat to civil liberties. In the light of the comments received on this option we think that it would prove controversial and difficult to introduce. We think that there is a more simple and acceptable way of dealing with the difficulties in the section 17 procedure.

11.45 The two main problems with section 17, which everybody agreed was practically unworkable as it stands, are caused by subsection (4) and subsection (5)(b)(ii). Subsection (4) obliges the procurator fiscal, within the very short time available before the arrested person is brought before a sheriff, to take all reasonable steps to intimate to the applicant spouse and to the solicitor who acted for that spouse when the interdict was granted or to any other solicitor who he or she has reason to believe acts for that spouse that criminal proceedings will not be taken. This, as we have seen, is a major source of difficulty. It seems to us that, in practical terms, nothing would be lost and much would be gained by repealing subsection (4). The other troublesome provision is subsection (5)(b)(ii) which requires the sheriff to be satisfied that "proceedings for breach of interdict will be taken" before he or she can order a further short period of detention under section 17(5). As we have seen, it is apparently extremely rare for a sheriff to have the necessary information to be so satisfied. We think that subsection (5)(b)(ii) could also be repealed. The result of these two repeals would be to preserve the basic scheme of the present procedure, including the important roles of the police, the procurator fiscal and the sheriff, but to remove the two blockages in its effective operation. In practice, given the ineffectiveness of the present procedure, there would be no loss of protection for the applicant spouse. We therefore recommend that

62. Subsection (4) and subsection (5)(b)(ii) of section 17 of the 1981 Act (procedure after arrest for breach of a matrimonial interdict) should be repealed.

(Draft Bill, clause 27(4).)

Definition of matrimonial home

11.46 Section.22 of the 1981 Act, as amended in 1985, defines a matrimonial home as

"any house, caravan, houseboat or other structure which has been provided or has been made available by one or both of the spouses as, or has become, a family residence and includes any garden or other ground or building attached to, and usually occupied with, or otherwise required for the amenity or convenience of, the house, caravan, houseboat or other structure but does not include a residence provided or made available by one spouse for that spouse to reside in, whether with any child of the family or not, separately from the other spouse".

There are a few small points here which could usefully be tidied up. The first relates to a home provided by one spouse for the other spouse to live in separately. As a matter of policy we think that this should not be regarded as a matrimonial home and it has been held in the Outer House of the Court of Session that it is not. ⁵⁵ The existing definition, however, leaves room for doubt and we think that doubt should be removed. A similar doubt exists in relation to a home provided by a third party-say, a spouse's parent-for that spouse to live in separately after the marriage has broken down. Again we think that this should not be a matrimonial home for the purposes of the Act. Consultees agreed, almost unanimously. We recommend that

63. It should be made clear in the definition of "matrimonial home" that that term does not include a residence provided or made available by anyone for one spouse to reside in, whether with any child of the family or not, separately from the other spouse.

(Draft Bill, clause 28(b).)

If, as we have recommended earlier, ⁵⁶ matrimonial interdicts were not defined in terms of the matrimonial home then this proposal would not cut down the protection which they can give.

11.47 The second point is a very minor one indeed. There is a doubt as to whether the definition of "matrimonial home" includes any garden or other ground or building which is not attached to the house but which is required for its amenity or convenience-for example, a garage situated a short distance from the house. ⁵⁷ We think that this should be included and recommend that

64. It should be made clear that the definition of "matrimonial home" includes any ground or building which is required for its amenity or convenience even if not attached to it.

(Draft Bill, clause 28(a).)

11.48 A third minor reform which has been suggested to us is a provision making it clear, for the removal of any doubt, that where the tenancy of a matrimonial home is transferred from one spouse to the other (voluntarily, or under section 13 of the 1981 Act, or under Schedule 2 paragraph 16 of the Housing (Scotland) Act 1987) with the intention that the home is thereafter to be the residence of the transferee spouse separately from the other spouse, the house should not be a matrimonial home after the transfer. This may well be the position at present but there is room for doubt because the house has been the parties' matrimonial home in the past. We recommend that

65. It should be made clear that where the tenancy of a matrimonial home is transferred from one spouse to the other with the intention that the house is thereafter to be the residence of the transferee separately from his or her spouse, the house is not a matrimonial home after the transfer.

(Draft Bill, clause 28(c).)

Other points on 1981 Act

11.49 We deal later with the rights of cohabitants under the 1981 Act.

11.50 Section 4(4)(b) of the 1981 Act requires the court which makes an exclusion order, on the application of the spouse concerned, to grant an interdict prohibiting the non-applicant spouse

"from entering the matrimonial home without the express permission of the applicant".

It was represented to us that difficulties often arose for the police when consent was given and then withdrawn. It was suggested that the words "without the express permission of the applicant should be repealed. While we can understand the difficulties caused by repeated changes of mind on the part of the protected spouse we do not think that it would be reasonable to remove the possibility of waiving the protection of the interdict. There may be many reasons for permitting the interdicted spouse to enter the home-for example, to collect personal effects, to visit an ill child, to discuss a reconciliation-and it would, we think, be unwise to regard a visit as a breach of interdict if it was made with the express permission of the other spouse.

11.51 Section 15(2) of the 1981 Act provides that a power of arrest attached to a matrimonial interdict does not have effect until the interdict, with the attached power of arrest, is served on the interdicted spouse. We received a suggestion that it should be made clear that service was required even if the interdicted spouse was present or represented in court. We think, however, that this is already clear from the terms of section 15, including section 15(4) which refers to a certificate of service.

11.52 We also received a suggestion that exclusion orders under the 1981 Act should be available, on the application of a social worker or other third party, for the purpose of having a person who was suspected of child abuse excluded from the home where the child is living. There is, at first sight, a plausible argument for removing the suspected abuser rather than the child from the home. However, this has nothing to do with occupancy rights in a matrimonial home and if a remedy of this nature is required it would have to be a separate and distinct remedy. This matter has recently been considered by the Child Care Law Review Group who found that there were significant difficulties, such as enforcement, in the suggestion and did not recommend an independent remedy. ⁵⁹ In these circumstances we do not think that it would be appropriate for us to take this suggestion further.