After a storm of protest from some Tory backbenchers, the Lord Chancellor has been forced to postpone the Family Homes and Domestic Violence Bill.
Its opponents feared the Bill would devalue the status of marriage if cohabitees were given the same rights as spouses to be protected in the home. In particular, they saw the power to transfer tenancies between cohabitees as a power to transfer “property”.
Alarming, but misconceived, examples were given of men being expelled permanently from their homes after a few weeks of cohabitation by allegations of violent behaviour.
In reality, the proposed reforms are modest and the Bill largely consolidates and improves existing law: unmarried couples have had the same right as married couples to be protected from domestic violence since the Domestic Violence and Matrimonial Proceedings Act 1976.
Much of the opposition to the Bill was ill-informed and fuelled by misleading slogans as to its anti-family nature. So, while the institution of marriage remains intact, the shelving of the Bill has meant that the opportunity to improve the current legislation in a socially important way for many families has, for now, been lost.
A serious problem with the law relating to domestic violence is the number of jurisdictions in operation, each providing different remedies.
Excluding criminal proceedings, the civil law remedies alone are contained in three statutes: the Domestic Violence and Matrimonial Proceedings Act 1976; the Domestic Proceedings and Magistrates' Courts Act 1978 and the Matrimonial Homes Act 1983. The High and County Courts can also grant injunctions ancillary to divorce proceedings.
The Bill was useful because it consolidated this “hotchpotch of enactments of limited scope”, to quote Lord Scarman, into one providing a unified jurisdiction between the High Court, County Courts and Magistrates' Courts.
The Bill also widens the range of individuals eligible for protection by a non-molestation order. Proceedings could have been commenced not only between spouses and cohabitees, but also between 'associated persons'. 'Associated persons' included former spouses and ex-cohabitees; people living in the same household (other than by reason of one being the other's employee, tenant, lodger or boarder); relatives and persons who are or were engaged to be married or who are party to the same family proceedings. The Bill would have enabled a flatmate intimidated by a co-dweller or parents terrified by one of their children to obtain relief from the fear of violence.
The Bill also extends the power to make occupation orders (ie ouster orders) to cover former spouses and ex-cohabitees. It gives clear guidelines on the exercise of these powers. They are to be of limited duration not exceeding six months. There can be ancillary orders, imposing obligation to repair and so on, on the other party.
The power to transfer certain tenancies under the Matrimonial Homes Act was extended to cohabitees with specified guidelines to ensure consistency and clarify the exceptional nature of such an order and its orientation towards the protection of children.
Current legislation is such that, unless the applicant can show that he or she has been physically abused or is in imminent danger of being assaulted, the chances of obtaining an injunction excluding the respondent from the home are limited.
The Bill, however, extends the meaning of violence to include non-physical abuse and sets down guidelines for the court on how to exercise its powers. The court has to decide whether the applicant or any relevant child will suffer “significant harm” if the order is not made and whether, given the circumstances, even though the applicant or child might risk being harmed, it may be better not to make the order.
'Harm' is defined as meaning 'ill-treatment or the impairment of health (both physical and mental)' and, in relation to a child, includes the impairment of a child's development. 'Ill-treatment' of a child includes sexual abuse and non-physical ill-treatment.
The Bill was to fill a significant lacuna in the Children Act 1989 by enabling the court to make an ouster order for the protection of a child when making an emergency protection or interim care order. The court would then have had the power to exclude the suspected abuser from the home instead of having to cause distress to the child by his or her removal.
The aim of the Bill was to improve the protection for victims of violence regardless of their marital status and to regulate the occupation of the family home once the relationship has broken down.
The Lord Chancellor intends to reintroduce the Bill, parliamentary time permitting, in a form which attracts less controversy, perhaps in tandem with the Divorce Reform Bill.