Scottish Court of Session Decisions

At advising, on 12th April 1994, the opinion of the court was delivered by the Lord President (Hope).

OPINION OF the Court —This is an appeal against an interlocutor of the sheriff principal by which he allowed an appeal by the defender against a number of interim orders which the sheriff had made in the pursuer's favour under sec. 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

The pursuer and the defender, who are not married to each other, had been living as man and wife for a period in excess of two years. Since about January 1992 they had been living at 92 Carnethie Street, Rosewell, of which they were joint tenants in terms of a tenancy agreement with a housing association. In March 1992 the pursuer gave birth to a child of whom the defender was the father. They continued to live together for some months after that date, but the pursuer alleges that she was forced to leave the house in August 1992 because of the defender's violent and abusive behaviour towards her, especially when under the influence of drugs. Since that date she and the child have been living with her father and she has not attempted to resume cohabitation with the defender. According to her averments, the defender has continued to threaten her, to abuse drugs and to behave unreasonably and she could not resume cohabitation with him in safety to her health. It was in these circumstances that she applied to the sheriff for an exclusion order and related remedies under the 1981 Act, for various other interim orders at common law and for an order transferring the defender's rights in the tenancy to her so as to vest the tenancy in her solely in terms of sec. 13 of the 1981 Act.

The pursuer's application first came before the sheriff on 19th June 1993. By that date the parties had been living apart for about 10 months. The sheriff made an order for service of the initial writ on the defender, and he granted interim interdict in terms of two of the pursuer's craves by which she sought protection for herself and the child at common law. On 7th July 1993, having heard argument from the solicitors for both parties, he granted ad interim an exclusion order suspending the defender's occupancy rights in the property at 92 Carnethie Street, warrant for the defender's summary ejection from the house and interim interdict against him from entering the property without the express permission of the pursuer, together with a variety of other interim orders about which there was no dispute and with which this appeal is not concerned. The defender then appealed against the sheriff's decision in regard to the defender's occupancy rights to the sheriff principal who, on 30th August 1993, allowed the appeal and recalled the sheriff's interlocutor so far as it had suspended the defender's rights to enter and occupy the property and ordered his summary ejection.

Two points were in dispute before both the sheriff and the sheriff principal. First there was the defender's challenge to the competency of making orders under sec. 4 when read together with sec. 18 of the 1981 Act in the circumstances of this case. It was submitted that sec. 18 could not apply where a couple who had formerly been a cohabiting couple had ceased to cohabit with each other, or at least where they had been living apart for such a long period as 10 months. Secondly, there was the defender's argument that on the facts the making of these orders was neither necessary nor reasonable, and that on this ground also they should not have been made. The sheriff was against the defender on both points. The sheriff principal was in favour of the defender's argument on competency, but he was not persuaded that there were grounds for interfering with the sheriff's decision on the merits of the application. The argument before us was confined to the question of competency.

According to its long title, one of the purposes of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 was to make new provision for Scotland as to the rights of the occupancy of spouses in a matrimonial home and of cohabiting couples in the house where they cohabit. Another purpose was to

provide for the transfer of the tenancy of a house occupied by a cohabiting couple between the partners in certain circumstances. While many of the provisions in this Act were based on recommendations contained in the Scottish Law Commission's Report on Occupancy Rights in the Matrimonial Home and Domestic Violence (Scot. Law Com. no. 60), its provisions in regard to cohabiting couples went further than the recommendations set out in that report. The Scottish Law Commission recommended in paras. 6.11 and 6.14 of the report that the civil remedies of interdict and exclusion orders proposed for a married couple should extent to unmarried cohabiting couples. But they said that the occupancy right of a cohabiting partner should last for a limited period only, and that it was inappropriate to extend to an unmarried partner various subsidiary rights and consequential remedies which they proposed should be conferred on a spouse in respect of a spouse's occupancy right. They also recommended that the court should not have the power to transfer the tenancy or a share of the tenancy of the house to an unmarried partner, which they recommended it should have in the case of spouses in regard to the matrimonial home. No doubt it was because of the limited nature of the remedies which they thought appropriate for unmarried couples that the Scottish Law Commission did not discuss in the report the question which has arisen in this case, which is whether it ought to be competent for a partner to apply to the court for those remedies at a stage where the partners are not living together as man and wife and there is no prospect, at least for the time being, of their being able to live together again in the same house.

Section 18 of the 1981 Act, which deals with the occupancy rights of cohabiting couples, provides in the first place for the situation, which does not arise here, where one of the partners is entitled, or permitted by a third party, to occupy a house and the other partner is not entitled or permitted to do so. The non-entitled partner can apply to the court for a grant of occupancy rights in the house for a period not exceeding six months, which may be extended by the court for a further period or periods each not exceeding six months. Subsection (1) provides that the court may grant such an order if it appears that the man and the woman were a cohabiting couple in that house, and it uses the expression "a cohabiting couple" with reference to the situation where a man and a woman are living with each other as man and wife. Subsection (2) provides that in deciding whether for the purposes of subsec. (1) a man and a woman are a cohabiting couple the court shall have regard to all the circumstances of the case including the time for which it appears they have been living together and whether there are any children of the relationship. The language of these two subsections, and the use of tenses in particular, suggests that an order under subsec. (1) of this section may be sought only while the man and the woman are still living together in the house as man and wife.

The situation in the present case, however, is that the pursuer has no need of an order under subsec. (1) because she and the defender are joint tenants of the house and both of them have a right to occupy it in terms of the tenancy. Her application to the court is made under subsec. (3) of sec. 18, the first part of which is in these terms: [their Lordships quoted the terms of subsec. (3) to the end of para. (b) and continued:]

There then follows a list of the provisions which are applied to a cohabiting couple by that subsection, including sec. 2, by which various supplementary rights may be obtained to make the occupancy right effective without the consent

of the other partner; sec. 3, by which the court may make an order protecting the occupancy rights of the applicant in relation to the other partner; sec. 4, by which the court is enabled to make an exclusion order suspending the occupancy rights of the other partner; sec. 13, which enables the court to transfer a tenancy from one partner to another; and sec 14, which deals with matrimonial interdicts.

It is clear from the range of orders which are available to a partner where subsec. (3) of sec. 18 applies that the purpose of the subsection is to extend to both partners of the cohabiting couple much of the protection in their occupancy of their home which is available under the Act to a spouse or a child of the family who are victims of domestic violence. The question is whether the protection of sec. 18(3) ceases to be available to them if, by the date when the application is made, the man and the woman have ceased to cohabit with each other, or at least if they have done so for anything other than a very short time. If that question is answered in the affirmative, a partner who is forced to leave the house because it is no longer safe to live with the other partner will be deprived of the benefit of these provisions. It seems unlikely that Parliament intended that a partner should have to continue to endure the other partner's conduct, at the risk of injury to herself or the child, in order to avoid being disqualified from obtaining the protection of the court. But the sheriff principal held that the language of sec. 18(3) left him with no alternative but to hold that the sheriff was wrong to regard the pursuer's application as competent.

Counsel for the pursuer submitted that it was a sufficient answer to the defender's argument on competency for the pursuer to show that she was entitled to occupy the house as a joint tenant under the tenancy with the housing association. Section 18(3) applied to both partners as soon as they took up the joint tenancy of the house and began living together there as man and wife. She submitted that the section continued to apply throughout the subsistence of the joint tenancy, so long as the partners were still living together in the house as man and wife immediately before their relationship broke down and one of them had to leave the house. She acknowledged that the language of the section, if taken literally, tended to suggest that the cohabitation had to continue up to the date when the application was made to the court. But there were indications elsewhere in sec. 18 and in the Act to suggest that subsec. (3) should be given a more liberal construction, in accordance with the plain intention of the Act which was to prevent victims of domestic violence from being made homeless. The definition of "occupancy rights" in subsec. (6) includes the right of a partner, if not in occupation, to enter into and occupy the house. Section 4(1), as amended by sec. 5 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, and as applied to cohabiting couples by sec. 18(3), provides that either partner may apply to the court for an order suspending the rights of the other partner in the matrimonial home, whether or not the partner who applies for the order is in occupation at the time of the application. These provisions were a clear indication that it was not fatal to an application under sec. 18(3) that the partners were no longer cohabiting when the application was made. There was also clear authority in England that the test for the jurisdiction of the court to make an order under sec. 1 of the Domestic Violence and Matrimonial Proceedings Act 1976, in the case of a man and a woman who are living together in the same household as man and wife, is whether they were so living together at the date of the violence

complained of, notwithstanding that they had ceased to live together by the date of the application.

Counsel for the defender submitted that the wording of sec. 18(3) had to be taken literally and that on a proper construction of the subsection the application, so far as relating to the orders under appeal, was incompetent. She resisted counsel for the pursuer's suggestion that assistance was to be derived from the English cases, as the protection afforded by the English Act was much more limited than that available under the 1981 Act and did not extend to the making of orders restricting or rescinding the rights of the other partner to occupy the property. The nature of cohabitation was such that a restricted approach had to be taken in order to avoid absurdity. The question whether a man and woman were a cohabiting couple was a question of fact and intention. Unlike the status of marriage, cohabitation must be held to have ceased when the facts and intention came together to end that relationship. The intention to live as man and wife with the other partner was essential, and if there was no longer any such intention the remedies available to a cohabiting couple were no longer available to them. The question whether the couple were a cohabiting couple had to be answered at the date of the application, not at any earlier date. On the facts of this case therefore the pursuer's application for orders under the 1981 Act was incompetent.

There are, as the sheriff principal has pointed out, a number of difficulties in the wording of sec. 18 which make it far from easy to find a satisfactory answer to the question which has been raised in this case. The section has been drafted entirely in the present tense, and no attention appears to have been given to the problem of definition which arises in applying provisions which have been designed for the status of marriage to cohabitation, which is not a status but is a question of fact and intention. But it appears to us that there are sufficient indications as to what was intended to be covered by these provisions for it to be possible to find a solution to the problem which is consistent with the wording of the section and does not give rise to absurdity. It clearly would be absurd if the section had to be construed in a way which would make it impossible for one partner of a couple who had previously been cohabiting to obtain the benefit of its provisions for herself and any child of the relationship without having to expose herself and the child to the risk of further abuse and injury. Such an interpretation would also enable the other partner to defeat the intention of the section simply by putting the partner who was in need of protection out of the house. His assertion that they were no longer cohabiting because they were no longer living together as man and wife and he did not intend to resume that relationship which his own acts had brought to an end would, on this approach, be enough to deprive the other partner of the protection which she needed to enjoy her right of occupancy.

The opening words of subsec. (3) provide that an application may be made under that subsection in one or other of two circumstances. The first is while an order under subsec. (1) or an extension of such an order is in force. The second is where both partners of a cohabiting couple are entitled or permitted by a third party to occupy the house where they are cohabiting. Now there is no requirement in regard to the first alternative that the parties are still living together in the house when the application is made under any of the provisions mentioned in subsec. (3). The only prerequisite is that the applicant is for the time being entitled to occupancy rights in the house in terms of an order made under

subsec. (1). In terms of subsec. (6) occupancy rights include a right to enter into and occupy the house, so it is not necessary that the person should actually have resumed occupation of it before seeking one or more of the further orders which are available. It would clearly be unsatisfactory if a partner who was not in need of an order under subsec. (1) because both parties were entitled or were permitted by a third party to occupy the house was in a weaker position in this respect. So, to be consistent with the position of the partner who had been granted occupancy rights by the court, it would seem that the only tests which require to be satisfied for the application to be competent in the latter case are that both partners are entitled or are permitted by a third party to occupy the house and the house was one where, while so entitled or permitted, they were cohabiting when the conduct occurred which gave rise to the application.

The variety of orders which may be sought under subsec. (3), together with the fact that there is no requirement that they must all be sought at the same time, is a further indication that a strict adherence to the present tense used in subsecs. (1) and (3) is not appropriate. To take just one example, sec. 13 of the Act as applied by sec. 18(3) provides for the transfer of the tenancy or a joint interest in it from the other partner of the cohabiting couple to the partner making the application. It is inconceivable that a partner who felt it necessary to seek such an order, coupled no doubt with exclusion orders and appropriate interdicts, would still be willing, for the time being at least, to cohabit with the other partner as man and wife in that house. To insist that they were still cohabiting when making that application would make it impossible for an application to be made at a time when an exclusion order was already in force under sec. 4 of the Act. This would greatly weaken the system of protection which sec. 18(3) was clearly intended to provide. It would lead to decisions being taken on grounds of competency which were out of touch with the reality of situations over which victims of domestic violence have no control. That cannot be right, as the legislation ought to be construed in a way which will assist and protect those who are in need of it.

We also think that assistance can be derived from the meaning which has been given in England to the phrase "a man and a woman who are living with each other in the same household as man and wife" in sec. 1(2) of the Domestic Violence and Matrimonial Proceedings Act 1976. In Davis v. Johnson [1979] AC 264 at p. 275 Lord Denning M.R. said:

"To my mind these words do not present any difficulty. They are used to denote the relationship between the parties before the incident which gives rise to the application. If they were then living together in the same household as husband and wife, that is enough."

Sir George Baker P. said at p. 286 in the same case that it could not have been intended that the woman, forced by violence to leave, loses her rights as soon as the door shuts behind her. That reasoning was adopted in McLean v. Burke (1982) 3 F.L.R. 70 and O'Neill v. Williams [1984] F.L.R. 1. In the latter case at pp. 8–9 Cumming-Bruce L.J. said that it would be very inconvenient if jurisdiction was to depend on an investigation of the individual acts and circumstances, hardships and difficulties, facing the victims of violence, and that he would be reluctant to hold that it was the intention of Parliament that the jurisdiction to invoke the emergency relief should depend on an accurate assessment of questions of fact and degree in order to explain the circumstances excusing the interval between the date of leaving the house and the date of making the application. He

held that the test previously propounded by the court was to be regarded as the correct test of jurisdiction, and said:

"If at the date of the alleged exclusion by violence, alleged to have been committed by the respondent, the applicant and the respondent were then living with each other in the same household as husband and wife, I would hold that the condition precedent of jurisdiction is established and that there is no other condition which has to be satisfied before the court has jurisdiction."

We have not overlooked counsel for the defender's point that the range of orders available under sec. 18(3) of the 1981 Act is very much wider than those available under sec. 1 of the 1976 Act, which is not concerned with transferring from one to the other of any rights of property. But some of the orders available under sec. 18 of the 1981 Act are comparable to those available under sec. 1 of the 1976 Act—namely those relating to exclusion orders under sec. 4, matrimonial interdicts under sec. 14 and rights of occupancy under sec. 18(1). It clearly would be unsatisfactory for a narrower construction to be placed on the crucial phrase in the Scottish legislation than has been given to it in England, especially as the recommendations of the Scottish Law Commission were made in the light of experience gained in England and Wales from the operation of among other measures the Act of 1976: see para. 1.9 of the report.

In our opinion the test of jurisdiction which has been adopted in England is the appropriate test for the competency of an application for occupancy rights under sec. 18(1) of the 1981 Act. Thus a partner may apply for an order for occupancy rights so long as the man and woman were living with each other as if they were man and wife in the house at the date of the conduct which gave rise to the application. The test which falls to be applied to an application made under sec. 18(3), in the case where both partners are entitled or permitted by a third party to occupy the house, is whether, while so entitled or permitted, they were still cohabiting there when the conduct which gave rise to the application occurred. It follows that the sheriff principal, who reached his conclusion with reluctance and did not have the benefit of reference to the English cases to which we have been referred, reached the wrong decision on this point. We shall therefore allow this appeal, recall the interlocutor of the sheriff principal and affirm the sheriff's interlocutor of 7th July 1993.