Hansard

I will speak against amendments 1, 2, 17 and 18 together and then come back to amendment 3, because it presents different issues to the others. Amendments 1, 2, 17 and 18 propose to extend the rights of non-entitled spouses to non-entitled partners whether of the same or opposite sex. Although I accept the general principle of extending the right to non-married partners, there are some issues that the committee needs to consider in more detail.I say up front that I am happy to consider in more detail and consult the Executive and other interested parties on the possibility of lodging an appropriate amendment at stage 3. I will set out why I think that that is the best course of action. My bill allows a non-entitled spouse, within the definition of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, to apply to the court if the property is "the sole or main residence of the non-entitled spouse but not of the debtor or, as the case may be, the proprietor."The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives non-entitled spouses automatic occupancy rights to the matrimonial home. My bill protects the non-entitled spouse—for example, where the couple have separated—by allowing them the opportunity to apply to the court in the same way that a debtor can. That complements the provision in the Matrimonial Homes (Family Protection) (Scotland) Act 1981, which gives the court the power to decide that the non-entitled spouse can take on the mortgage payments instead of the entitled spouse, who is the debtor.The Matrimonial Homes (Family Protection) (Scotland) Act 1981 also defines non-entitled partners as cohabiting couples of the opposite sex and gives them certain occupancy rights, where cohabitation is proved in court. A non-entitled partner under that definition may have children or similar circumstances to those of a non-entitled spouse. That would warrant protection under the bill. It would therefore be attractive to give non-entitled partners the same rights, but we must bear it in mind that, under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the rights of cohabitees are much more limited than those of spouses and there is no power for the court to transfer responsibility for mortgage payments.Robert Brown also proposes that we extend the definition of non-entitled partners in the bill to same-sex couples and give them the same rights as non-entitled spouses have. I have no difficulty with that in principle. I will explain the practical effect of doing so. As I have explained, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives the non-entitled spouse and the non-entitled partner differing degrees of occupancy rights, but does not provide any similar protection for same-sex partners. That means that the court cannot recognise that a non-entitled partner of a same-sex couple has any rights to occupy the property.Therefore, although we could amend the bill to allow non-entitled partners of same-sex couples to apply to the courts under the bill, the amendment would be limited, rather than having much force, because of the Matrimonial Homes (Family Protection) (Scotland) Act 1981's provisions. It would be likely to be outwith the scope of my bill—which is about mortgage repossession actions—to make any amendments to the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and give non-entitled partners of same-sex couples similar occupancy rights to those of opposite-sex couples. I am sympathetic to the principles of Robert Brown's amendments, but I cannot agree to them.Amendments 1, 2, 17 and 18 raise two technical issues. They would appear to create a dual definition of non-entitled partner in a relationship with somebody of the opposite sex. Amendment 17 would link the definition to the Matrimonial Homes (Family Protection) (Scotland) Act 1981. With amendment 18, Robert would redefine non-entitled partner. I suggest that it makes sense to link the definition to the Matrimonial Homes (Family Protection) (Scotland) Act 1981.Although Robert Brown defines who the non-entitled partners are, he provides no criteria for defining someone as a non-entitled partner in a same-sex couple. As it stands, somebody could be the non-entitled partner on day one of the relationship. I suggest that any amendment should keep in line with other legislation for which, for example, the couple would have to prove that they had lived together for at least six months. Such criteria would also prevent others from using that as a potential loophole to apply to the courts under the provisions of my bill when they had no right.For those reasons, I encourage Robert Brown to withdraw amendment 1 and not to press the other amendments. I undertake to consider the issue further with the Executive and other interested parties, including the lenders. I will find out whether it is possible to lodge an appropriate amendment at stage 3.I am sorry for taking up so much time in replying to the group of amendments, but it is a big and important group. Amendment 3 has a different emphasis from the others in the group. The amendment would extend the definition of applicant to include anybody who lawfully occupies the property as a sole or main residence. I do not think that that is a good idea.My proposals would allow the debtor, debtors or spouse of the debtor to apply to the court for the suspension of the creditor's rights under the standard security. That is sensible, as the security is a contract between the debtor and the creditor. A non-entitled spouse has recognised occupancy rights under existing legislation.On tenants or other persons who occupy a property, we must first deal with how the court defines the phrase "lawfully occupies". I understand that some lenders exercise their power of variation of the standard condition so that no one other than the lender is allowed to reside in the property without the lender's prior consent. The lenders will argue that the only persons lawfully occupying the property are the debtor, their spouse and anyone whose occupation has been disclosed to the lender in accordance with any conditions of the loan. Therefore, if your cousin from Australia stayed with you for an extended period, you might be in breach of the conditions of your loan if you did not ask the lender's permission first.Under Robert Brown's proposals, if you had mortgage difficulties, that cousin could apply to the courts to stay in your property for longer, until they found alternative accommodation, even if you, as the debtor, did not want to apply, perhaps because you wanted to minimise your mortgage arrears. That risk might make some people less inclined to rent out their property, or a room in their property, if they could be forced to shoulder mortgage arrears while the tenant remained in the property.Amendment 3 would give third parties rights against the creditor, without imposing any responsibilities. If the amendment were agreed to, lenders could decide to be much more restrictive in their lending. In areas where there are few one-bedroom flats or houses, many people manage to afford their mortgages by taking in a friend as a tenant. Lenders might not lend in such circumstances, whether or not there was any likelihood of default, simply to avoid being penalised by a third party.By agreeing to amendment 3, we would risk imposing a burden on creditors and debtors to give other occupiers—who have taken on no responsibilities—some benefit. That could have a detrimental effect on the provision of accommodation in the private rented sector, as debtors and creditors seek to avoid the risk.What a tenant needs is more information about their rights and notification when there is a possession action by the landlord's creditor, so that they are not finding that out when the sheriff officer turns up at their door asking them to leave.The bill would provide that spouses were advised that the creditor had initiated action and would point them towards obtaining advice on their existing rights. That is the best way forward, because it balances the rights of all the parties in the situation.