Statement by the Delegation of Ukraine on the Russia’s ongoing aggression against Ukraine and illegal occupation of Crimea
The court and any person, in exercising functions under or in consequence of Parts II and III, shall have regard to the following general principles—
that the institution of marriage is to be supported;
that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage;
that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end—
with minimum distress to the parties and to the children affected;
with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and
without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end; and
that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.
The court may—
by making an order (to be known as a divorce order), dissolve a marriage; or
by making an order (to be known as a separation order), provide for the separation of the parties to a marriage.
Any such order comes into force on being made.
A separation order remains in force—
while the marriage continues; or
until cancelled by the court on the joint application of the parties.
If an application for a divorce order or for a separation order is made to the court under this section by one or both of the parties to a marriage, the court shall make the order applied for if (but only if)—
the marriage has broken down irretrievably;
the requirements of section 8 about information meetings are satisfied;
the requirements of section 9 about the parties' arrangements for the future are satisfied; and
the application has not been withdrawn.
A divorce order may not be made if an order preventing divorce is in force under section 10.
If the court is considering an application for a divorce order and an application for a separation order in respect of the same marriage it shall proceed as if it were considering only the application for a divorce order unless—
an order preventing divorce is in force with respect to the marriage;
the court makes an order preventing divorce; or
section 7(6) or (13) applies.
A separation order which is made before the second anniversary of the marriage may not be converted into a divorce order under this section until after that anniversary.
A separation order may not be converted into a divorce order under this section at any time while—
an order preventing divorce is in force under section 10; or
subsection (4) applies.
Otherwise, if a separation order is in force and an application for a divorce order— the court shall grant the application once the requirements of section 11 have been satisfied.
is made under this section by either or both of the parties to the marriage, and
is not withdrawn,
Subject to subsection (5), this subsection applies if—
there is a child of the family who is under the age of sixteen when the application under this section is made; or
the application under this section is made by one party and the other party applies to the court, before the end of such period as may be prescribed by rules of court, for time for further reflection.
Subsection (4)—
does not apply if, at the time when the application under this section is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party;
does not apply if the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family;
ceases to apply—
at the end of the period of six months beginning with the end of the period for reflection and consideration by reference to which the separation order was made; or
if earlier, on there ceasing to be any children of the family to whom subsection (4)(a) applied.
A marriage is to be taken to have broken down irretrievably if (but only if)—
a statement has been made by one (or both) of the parties that the maker of the statement (or each of them) believes that the marriage has broken down;
the statement complies with the requirements of section 6;
the period for reflection and consideration fixed by section 7 has ended; and
the application under section 3 is accompanied by a declaration by the party making the application that— the applicant believes that the marriage cannot be saved.
having reflected on the breakdown, and
having considered the requirements of this Part as to the parties' arrangements for the future,
The statement and the application under section 3 do not have to be made by the same party.
An application may not be made under section 3 by reference to a particular statement if—
the parties have jointly given notice (in accordance with rules of court) withdrawing the statement; or
a period of one year (“the specified period”) has passed since the end of the period for reflection and consideration.
Any period during which an order preventing divorce is in force is not to count towards the specified period mentioned in subsection (3)(b).
Subsection (6) applies if, before the end of the specified period, the parties jointly give notice to the court that they are attempting reconciliation but require additional time.
The specified period—
stops running on the day on which the notice is received by the court; but
resumes running on the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful.
If the specified period is interrupted by a continuous period of more than 18 months, any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement received by the court at any time after the end of the 18 months.
The Lord Chancellor may by order amend subsection (3)(b) by varying the specified period.
A statement under section 5(1)(a) is to be known as a statement of marital breakdown; but in this Part it is generally referred to as“a statement”.
If a statement is made by one party it must also state that that party—
is aware of the purpose of the period for reflection and consideration as described in section 7; and
wishes to make arrangements for the future.
If a statement is made by both parties it must also state that each of them—
is aware of the purpose of the period for reflection and consideration as described in section 7; and
wishes to make arrangements for the future.
A statement must be given to the court in accordance with the requirements of rules made under section 12.
A statement must also satisfy any other requirements imposed by rules made under that section.
A statement made at a time when the circumstances of the case include any of those mentioned in subsection (7) is ineffective for the purposes of this Part.
The circumstances are—
that a statement has previously been made with respect to the marriage and it is, or will become, possible— to be made by reference to the previous statement;
for an application for a divorce order, or
for an application for a separation order,
that such an application has been made in relation to the marriage and has not been withdrawn;
that a separation order is in force.
Where a statement has been made, a period for the parties— must pass before an application for a divorce order or for a separation order may be made by reference to that statement.
to reflect on whether the marriage can be saved and to have an opportunity to effect a reconciliation, and
to consider what arrangements should be made for the future,
That period is to be known as the period for reflection and consideration.
The period for reflection and consideration is nine months beginning with the fourteenth day after the day on which the statement is received by the court.
Where— the court may, on the application of that other party, extend the period for reflection and consideration.
the statement has been made by one party,
rules made under section 12 require the court to serve a copy of the statement on the other party, and
failure to comply with the rules causes inordinate delay in service,
An extension under subsection (4) may be for any period not exceeding the time between—
the beginning of the period for reflection and consideration; and
the time when service is effected.
A statement which is made before the first anniversary of the marriage to which it relates is ineffective for the purposes of any application for a divorce order.
Subsection (8) applies if, at any time during the period for reflection and consideration, the parties jointly give notice to the court that they are attempting a reconciliation but require additional time.
The period for reflection and consideration—
stops running on the day on which the notice is received by the court; but
resumes running on the day on which either of the parties gives notice to the court that the attempted reconciliation has been unsuccessful.
If the period for reflection and consideration is interrupted under subsection (8) by a continuous period of more than 18 months, any application by either of the parties for a divorce order or for a separation order must be by reference to a new statement received by the court at any time after the end of the 18 months.
Where an application for a divorce order is made by one party, subsection (13) applies if—
the other party applies to the court, within the prescribed period, for time for further reflection; and
the requirements of section 9 (except any imposed under section 9(3)) are satisfied.
Where any application for a divorce order is made, subsection (13) also applies if there is a child of the family who is under the age of sixteen when the application is made.
Subsection (13) does not apply if—
at the time when the application for a divorce order is made, there is an occupation order or a non-molestation order in force in favour of the applicant, or of a child of the family, made against the other party; or
the court is satisfied that delaying the making of a divorce order would be significantly detrimental to the welfare of any child of the family.
If this subsection applies, the period for reflection and consideration is extended by a period of six months, but—
only in relation to the application for a divorce order in respect of which the application under subsection (10) was made; and
without invalidating that application for a divorce order.
A period for reflection and consideration which is extended under subsection (13), and which has not otherwise come to an end, comes to an end on there ceasing to be any children of the family to whom subsection (11) applied.
The requirements about information meetings are as follows.
A party making a statement must (except in prescribed circumstances) have attended an information meeting not less than three months before making the statement.
Different information meetings must be arranged with respect to different marriages.
In the case of a statement made by both parties, the parties may attend separate meetings or the same meeting.
Where one party has made a statement, the other party must (except in prescribed circumstances) attend an information meeting before—
making any application to the court—
with respect to a child of the family; or
of a prescribed description relating to property or financial matters; or
contesting any such application.
In this section“information meeting” means a meeting organised, in accordance with prescribed provisions for the purpose—
of providing, in accordance with prescribed provisions, relevant information to the party or parties attending about matters which may arise in connection with the provisions of, or made under, this Part or Part III; and
of giving the party or parties attending the information meeting the opportunity of having a meeting with a marriage counsellor and of encouraging that party or those parties to attend that meeting.
An information meeting must be conducted by a person who—
is qualified and appointed in accordance with prescribed provisions; and
will have no financial or other interest in any marital proceedings between the parties.
Regulations made under this section may, in particular, make provision—
about the places and times at which information meetings are to be held;
for written information to be given to persons attending them;
for the giving of information to parties (otherwise than at information meetings) in cases in which the requirement to attend such meetings does not apply;
for information of a prescribed kind to be given only with the approval of the Lord Chancellor or only by a person or by persons approved by him; and
for information to be given, in prescribed circumstances, only with the approval of the Lord Chancellor or only by a person, or by persons, approved by him.
Regulations made under subsection (6) must, in particular, make provision with respect to the giving of information about—
marriage counselling and other marriage support services;
the importance to be attached to the welfare, wishes and feelings of children;
how the parties may acquire a better understanding of the ways in which children can be helped to cope with the breakdown of a marriage;
the nature of the financial questions that may arise on divorce or separation, and services which are available to help the parties;
protection available against violence, and how to obtain support and assistance;
mediation;
the availability to each of the parties of independent legal advice and representation;
the principles of legal aid and where the parties can get advice about obtaining legal aid;
the divorce and separation process.
Before making any regulations under subsection (6), the Lord Chancellor must consult such persons concerned with the provision of relevant information as he considers appropriate.
A meeting with a marriage counsellor arranged under this section—
must be held in accordance with prescribed provisions; and
must be with a person qualified and appointed in accordance with prescribed provisions.
A person who would not be required to make any contribution towards mediation provided for him under Part IIIA of the Legal Aid Act 1988 shall not be required to make any contribution towards the cost of a meeting with a marriage counsellor arranged for him under this section.
In this section“prescribed” means prescribed by regulations made by the Lord Chancellor.
The requirements as to the parties' arrangements for the future are as follows.
One of the following must be produced to the court—
a court order (made by consent or otherwise) dealing with their financial arrangements;
a negotiated agreement as to their financial arrangements;
a declaration by both parties that they have made their financial arrangements;
a declaration by one of the parties (to which no objection has been notified to the court by the other party) that—
he has no significant assets and does not intend to make an application for financial provision;
he believes that the other party has no significant assets and does not intend to make an application for financial provision; and
there are therefore no financial arrangements to be made.
If the parties— the court may, on the application of either party, direct that there must also be produced to the court a declaration by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages.
were married to each other in accordance with usages of a kind mentioned in section 26(1) of the Marriage Act 1949 (marriages which may be solemnized on authority of superintendent registrar’s certificate), and
are required to co-operate if the marriage is to be dissolved in accordance with those usages,
A direction under subsection (3)—
may be given only if the court is satisfied that in all the circumstances of the case it is just and reasonable to give it; and
may be revoked by the court at any time.
The requirements of section 11 must have been satisfied.
Schedule 1 supplements the provisions of this section.
If the court is satisfied, on an application made by one of the parties after the end of the period for reflection and consideration, that the circumstances of the case are— it may make a divorce order or a separation order even though the requirements of subsection (2) have not been satisfied.
those set out in paragraph 1 of Schedule 1,
those set out in paragraph 2 of that Schedule,
those set out in paragraph 3 of that Schedule, or
those set out in paragraph 4 of that Schedule,
If the parties' arrangements for the future include a division of pension assets or rights under section 25B of the 1973 Act or section 10 of the Family Law (Scotland) Act 1985, any declaration under subsection (2) must be a statutory declaration.
If an application for a divorce order has been made by one of the parties to a marriage, the court may, on the application of the other party, order that the marriage is not to be dissolved.
Such an order (an “order preventing divorce”) may be made only if the court is satisfied—
that dissolution of the marriage would result in substantial financial or other hardship to the other party or to a child of the family; and
that it would be wrong, in all the circumstances (including the conduct of the parties and the interests of any child of the family), for the marriage to be dissolved.
If an application for the cancellation of an order preventing divorce is made by one or both of the parties, the court shall cancel the order unless it is still satisfied—
that dissolution of the marriage would result in substantial financial or other hardship to the party in whose favour the order was made or to a child of the family; and
that it would be wrong, in all the circumstances (including the conduct of the parties and the interests of any child of the family), for the marriage to be dissolved.
If an order preventing a divorce is cancelled, the court may make a divorce order in respect of the marriage only if an application is made under section 3 or 4(3) after the cancellation.
An order preventing divorce may include conditions which must be satisfied before an application for cancellation may be made under subsection (3).
In this section“hardship” includes the loss of a chance to obtain a future benefit (as well as the loss of an existing benefit).
In any proceedings for a divorce order or a separation order, the court shall consider—
whether there are any children of the family to whom this section applies; and
where there are any such children, whether (in the light of the arrangements which have been, or are proposed to be, made for their upbringing and welfare) it should exercise any of its powers under the Children Act 1989 with respect to any of them.
Where, in any case to which this section applies, it appears to the court that— it may direct that the divorce order or separation order is not to be made until the court orders otherwise.
the circumstances of the case require it, or are likely to require it, to exercise any of its powers under the Children Act 1989 with respect to any such child,
it is not in a position to exercise the power, or (as the case may be) those powers, without giving further consideration to the case, and
there are exceptional circumstances which make it desirable in the interests of the child that the court should give a direction under this section,
In deciding whether the circumstances are as mentioned in subsection (2)(a), the court shall treat the welfare of the child as paramount.
In making that decision, the court shall also have particular regard, on the evidence before it, to—
the wishes and feelings of the child considered in the light of his age and understanding and the circumstances in which those wishes were expressed;
the conduct of the parties in relation to the upbringing of the child;
the general principle that, in the absence of evidence to the contrary, the welfare of the child will be best served by—
his having regular contact with those who have parental responsibility for him and with other members of his family; and
the maintenance of as good a continuing relationship with his parents as is possible; and
any risk to the child attributable to—
where the person with whom the child will reside is living or proposes to live;
any person with whom that person is living or with whom he proposes to live; or
any other arrangements for his care and upbringing.
This section applies to—
any child of the family who has not reached the age of sixteen at the date when the court considers the case in accordance with the requirements of this section; and
any child of the family who has reached that age at that date and in relation to whom the court directs that this section shall apply.
The Lord Chancellor may make rules—
as to the form in which a statement is to be made and what information must accompany it;
requiring the person making the statement to state whether or not, since satisfying the requirements of section 8, he has made any attempt at reconciliation;
as to the way in which a statement is to be given to the court;
requiring a copy of a statement made by one party to be served by the court on the other party;
as to circumstances in which such service may be dispensed with or may be effected otherwise than by delivery to the party;
requiring a party who has made a statement to provide the court with information about the arrangements that need to be made in consequence of the breakdown;
as to the time, manner and (where attendance in person is required) place at which such information is to be given;
where a statement has been made, requiring either or both of the parties— as may be specified;
to prepare and produce such other documents, and
to attend in person at such places and for such purposes,
as to the information and assistance which is to be given to the parties and the way in which it is to be given;
requiring the parties to be given, in such manner as may be specified, copies of such statements and other documents as may be specified.
The Lord Chancellor may make rules requiring a person who is the legal representative of a party to a marriage with respect to which a statement has been, or is proposed to be, made—
to inform that party, at such time or times as may be specified—
about the availability to the parties of marriage support services;
about the availability to them of mediation; and
where there are children of the family, that in relation to the arrangements to be made for any child the parties should consider the child’s welfare, wishes and feelings;
to give that party, at such time or times as may be specified, names and addresses of persons qualified to help—
to effect a reconciliation; or
in connection with mediation; and
to certify, at such time or times as may be specified—
whether he has complied with the provision made in the rules by virtue of paragraphs (a) and (b);
whether he has discussed with that party any of the matters mentioned in paragraph (a) or the possibility of reconciliation; and
which, if any, of those matters they have discussed.
In subsections (1) and (2)“specified” means determined under or described in the rules.
This section does not affect any power to make rules of court for the purposes of this Act.
After the court has received a statement, it may give a direction requiring each party to attend a meeting arranged in accordance with the direction for the purpose—
of enabling an explanation to be given of the facilities available to the parties for mediation in relation to disputes between them; and
of providing an opportunity for each party to agree to take advantage of those facilities.
A direction may be given at any time, including in the course of proceedings connected with the breakdown of the marriage (as to which see section 25).
A direction may be given on the application of either of the parties or on the initiative of the court.
The parties are to be required to attend the same meeting unless—
one of them asks, or both of them ask, for separate meetings; or
the court considers separate meetings to be more appropriate.
A direction shall—
specify a person chosen by the court (with that person’s agreement) to arrange and conduct the meeting or meetings; and
require such person as may be specified in the direction to produce to the court, at such time as the court may direct, a report stating—
whether the parties have complied with the direction; and
if they have, whether they have agreed to take part in any mediation.
The court’s power to adjourn any proceedings connected with the breakdown of a marriage includes power to adjourn—
for the purpose of allowing the parties to comply with a direction under section 13; or
for the purpose of enabling disputes to be resolved amicably.
In determining whether to adjourn for either purpose, the court shall have regard in particular to the need to protect the interests of any child of the family.
If the court adjourns any proceedings connected with the breakdown of a marriage for either purpose, the period of the adjournment must not exceed the maximum period prescribed by rules of court.
Unless the only purpose of the adjournment is to allow the parties to comply with a direction under section 13, the court shall order one or both of them to produce to the court a report as to—
whether they have taken part in mediation during the adjournment;
whether, as a result, any agreement has been reached between them;
the extent to which any dispute between them has been resolved as a result of any such agreement;
the need for further mediation; and
how likely it is that further mediation will be successful.
Schedule 2 amends the 1973 Act.
The main object of Schedule 2 is—
to provide that, in the case of divorce or separation, an order about financial provision may be made under that Act before a divorce order or separation order is made; but
to retain (with minor changes) the position under that Act where marriages are annulled.
Schedule 2 also makes minor and consequential amendments of the 1973 Act connected with the changes mentioned in subsection (1).
The Matrimonial Causes Act 1973 is amended as follows.
In section 25B (benefits under a pension scheme on divorce, etc.), in subsection (2), after paragraph (b), insert—.
After subsection (7) of that section, add—
In section 25D (pensions: supplementary), insert—
in subsection (2)—
at the end of paragraph (a), the words “or prescribe the rights of the other party under the pension scheme,”; and
after paragraph (a), the following paragraph—;
“funded scheme” means a scheme under which the benefits are provided for by setting aside resources related to the value of the members' rights as they accrue (and“unfunded scheme” shall be construed accordingly); “subordinate legislation” has the same meaning as in the Interpretation Act 1978;
after subsection (4), the following subsection—
Section 10 of the Family Law (Scotland) Act 1985 (sharing of value of matrimonial property), is amended as follows—
in subsection (5) at the end of paragraph (b), insert, and; and
after subsection (5) insert—.
In section 1 of the Domestic Proceedings and Magistrates' Courts Act 1978, omit paragraphs (c) and (d) (which provide for behaviour and desertion to be grounds on which an application for a financial provision order may be made).
In section 7(1) of that Act (powers of magistrates' court where spouses are living apart by agreement), omit “neither party having deserted the other”.
In this section“the court’s jurisdiction” means—
the jurisdiction of the court under this Part to entertain marital proceedings; and
any other jurisdiction conferred on the court under this Part, or any other enactment, in consequence of the making of a statement.
The court’s jurisdiction is exercisable only if—
at least one of the parties was domiciled in England and Wales on the statement date;
at least one of the parties was habitually resident in England and Wales throughout the period of one year ending with the statement date; or
nullity proceedings are pending in relation to the marriage when the marital proceedings commence.
Subsection (4) applies if—
a separation order is in force; or
an order preventing divorce has been cancelled.
The court—
continues to have jurisdiction to entertain an application made by reference to the order referred to in subsection (3); and
may exercise any other jurisdiction which is conferred on it in consequence of such an application.
Schedule 3 amends Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (orders to stay proceedings where there are proceedings in other jurisdictions).
The court’s jurisdiction is exercisable subject to any order for a stay under Schedule 1 to that Act.
In this section—
“relative”, in relation to a person, means— and includes, in relation to a person who is living or has lived with another person as husband and wife, any person who would fall within paragraph (a) or (b) if the parties were married to each other;
where the order was made by a magistrates' court, any magistrates' court.
“relevant child”, in relation to any proceedings under this Part, has the meaning given by section 62(2);
where the order was made by a county court, a judge or district judge of that or any other county court; or
“prescribed” means prescribed by rules of court.
“separation proceedings” is to be read with section 20;
The receipt by the court of a statement is to be treated as the commencement of proceedings.
The proceedings are to be known as marital proceedings.
Marital proceedings are also—
separation proceedings, if an application for a separation order has been made under section 3 by reference to the statement and not withdrawn;
divorce proceedings, if an application for a divorce order has been made under section 3 by reference to the statement and not withdrawn.
Marital proceedings are to be treated as being both divorce proceedings and separation proceedings at any time when no application by reference to the statement, either for a divorce order or for a separation order, is outstanding.
Proceedings which are commenced by the making of an application under section 4(3) are also marital proceedings and divorce proceedings.
Marital proceedings come to an end—
on the making of a separation order;
on the making of a divorce order;
on the withdrawal of the statement by a notice in accordance with section 5(3)(a);
at the end of the specified period mentioned in section 5(3)(b), if no application under section 3 by reference to the statement is outstanding;
on the withdrawal of all such applications which are outstanding at the end of that period;
on the withdrawal of an application under section 4(3).
Where— that property devolves as if the other had died before the intestacy occurred.
a separation order is in force, and
while the parties to the marriage remain separated, one of them dies intestate as respects any real or personal property,
The Lord Chancellor may, with the approval of the Treasury, make grants in connection with—
the provision of marriage support services;
research into the causes of marital breakdown;
research into ways of preventing marital breakdown.
Any grant under this section may be made subject to such conditions as the Lord Chancellor considers appropriate.
In exercising his power to make grants in connection with the provision of marriage support services, the Lord Chancellor is to have regard, in particular, to the desirability of services of that kind being available when they are first needed.
The Lord Chancellor or a person appointed by him may secure the provision, in accordance with regulations made by the Lord Chancellor, of marriage counselling.
Marriage counselling may only be provided under this section at a time when a period for reflection and consideration—
is running in relation to the marriage; or
is interrupted under section 7(8) (but not for a continuous period of more than 18 months).
Marriage counselling may only be provided under this section for persons who would not be required to make any contribution towards the cost of mediation provided for them under Part IIIA of the Legal Aid Act 1988.
Persons for whom marriage counselling is provided under this section are not to be required to make any contribution towards the cost of the counselling.
Marriage counselling is only to be provided under this section if it appears to the marriage counsellor to be suitable in all the circumstances.
Regulations under subsection (1) may—
make provision about the way in which marriage counselling is to be provided; and
prescribe circumstances in which the provision of marriage counselling is to be subject to the approval of the Lord Chancellor.
A contract entered into for the purposes of subsection (1) by a person appointed under that subsection must include such provision as the Lord Chancellor may direct.
If the person appointed under subsection (1) is the Legal Aid Board, the powers conferred on the Board by or under the Legal Aid Act 1988 shall be exercisable for the purposes of this section as they are exercisable for the purposes of that Act.
In section 15 of the Legal Aid Act 1988 (availability of, and payment for, representation under Part IV of the Act), after subsection (3H) insert—
In this Part—
“financial relief” has such meaning as may be prescribed; and
“child of the family” and“the court” have the same meaning as in the 1973 Act;
“cohabitant” and“former cohabitant” have the meaning given by section 62(1);
For the purposes of this Part, references to the withdrawal of an application are references, in relation to an application made jointly by both parties, to its withdrawal by a notice given, in accordance with rules of court—
jointly by both parties; or
separately by each of them.
Where only one party gives such a notice of withdrawal, in relation to a joint application, the application shall be treated as if it had been made by the other party alone.
For the purposes of this Part, proceedings are connected with the breakdown of a marriage if they fall within subsection (2) and, at the time of the proceedings—
a statement has been received by the court with respect to the marriage and it is or may become possible for an application for a divorce order or separation order to be made by reference to that statement;
such an application in relation to the marriage has been made and not withdrawn; or
a divorce order has been made, or a separation order is in force, in relation to the marriage.
The proceedings are any under Parts I to V of the Children Act 1989 with respect to a child of the family or any proceedings resulting from an application—
for, or for the cancellation of, an order preventing divorce in relation to the marriage;
by either party to the marriage for an order under Part IV;
for the exercise, in relation to a party to the marriage or child of the family, of any of the court’s powers under Part II of the 1973 Act;
made otherwise to the court with respect to, or in connection with, any proceedings connected with the breakdown of the marriage.
In the Legal Aid Act 1988 insert, after section 13—
In section 2 of the 1988 Act, after subsection (3), insert—
“mediator” means a person with whom the Board contracts for the provision of mediation by any person.
After section 13A of the 1988 Act, insert—
After section 13B of the 1988 Act, insert—
and
At the end of section 16, insert—
In section 15 of the 1988 Act, after subsection (3E) insert—
This section applies if—
one spouse is entitled to occupy a dwelling-house by virtue of—
a beneficial estate or interest or contract; or
any enactment giving that spouse the right to remain in occupation; and
the other spouse is not so entitled.
Subject to the provisions of this Part, the spouse not so entitled has the following rights (“matrimonial home rights”)—
if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by the other spouse except with the leave of the court given by an order under section 33;
if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.
If a spouse is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by that spouse in or towards satisfaction of any liability of the other spouse in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by the other spouse.
A spouse’s occupation by virtue of this section—
is to be treated, for the purposes of the Rent (Agriculture) Act 1976 and the Rent Act 1977 (other than Part V and sections 103 to 106 of that Act), as occupation by the other spouse as the other spouse’s residence, and
if the spouse occupies the dwelling-house as that spouse’s only or principal home, is to be treated, for the purposes of the Housing Act 1985 and Part I of the Housing Act 1988, as occupation by the other spouse as the other spouse’s only or principal home.
If a spouse (“the first spouse”)— the person to whom the payment is made may treat it as having been made by the second spouse, but the fact that that person has treated any such payment as having been so made does not affect any claim of the first spouse against the second spouse to an interest in the dwelling-house by virtue of the payment.
is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, and
makes any payment in or towards satisfaction of any liability of the other spouse (“the second spouse”) in respect of mortgage payments affecting the dwelling-house,
If a spouse is entitled under this section to occupy a dwelling-house or part of a dwelling-house by reason of an interest of the other spouse under a trust, all the provisions of subsections (3) to (5) apply in relation to the trustees as they apply in relation to the other spouse.
This section does not apply to a dwelling-house which has at no time been, and which was at no time intended by the spouses to be, a matrimonial home of theirs.
A spouse’s matrimonial home rights continue—
only so long as the marriage subsists, except to the extent that an order under section 33(5) otherwise provides; and
only so long as the other spouse is entitled as mentioned in subsection (1) to occupy the dwelling-house, except where provision is made by section 31 for those rights to be a charge on an estate or interest in the dwelling-house.
It is hereby declared that a spouse— is to be treated, only for the purpose of determining whether he has matrimonial home rights, as not being entitled to occupy the dwelling-house by virtue of that interest.
who has an equitable interest in a dwelling-house or in its proceeds of sale, but
is not a spouse in whom there is vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house,
Subsections (2) and (3) apply if, at any time during a marriage, one spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest.
The other spouse’s matrimonial home rights are a charge on the estate or interest.
The charge created by subsection (2) has the same priority as if it were an equitable interest created at whichever is the latest of the following dates—
the date on which the spouse so entitled acquires the estate or interest;
the date of the marriage; and
1st January 1968 (the commencement date of the Matrimonial Homes Act 1967).
Subsections (5) and (6) apply if, at any time when a spouse’s matrimonial home rights are a charge on an interest of the other spouse under a trust, there are, apart from either of the spouses, no persons, living or unborn, who are or could become beneficiaries under the trust.
The rights are a charge also on the estate or interest of the trustees for the other spouse.
The charge created by subsection (5) has the same priority as if it were an equitable interest created (under powers overriding the trusts) on the date when it arises.
In determining for the purposes of subsection (4) whether there are any persons who are not, but could become, beneficiaries under the trust, there is to be disregarded any potential exercise of a general power of appointment exercisable by either or both of the spouses alone (whether or not the exercise of it requires the consent of another person).
Even though a spouse’s matrimonial home rights are a charge on an estate or interest in the dwelling-house, those rights are brought to an end by— unless the court directs otherwise by an order made under section 33(5).
the death of the other spouse, or
the termination (otherwise than by death) of the marriage,
If— the surrender has effect subject to the charge and the persons thereafter entitled to the other estate or interest are, for so long as the estate or interest surrendered would have endured if not so surrendered, to be treated for all purposes of this Part as deriving title to the other estate or interest under the other spouse or, as the case may be, under the trustees for the other spouse, by virtue of the surrender.
a spouse’s matrimonial home rights are a charge on an estate or interest in the dwelling-house, and
that estate or interest is surrendered to merge in some other estate or interest expectant on it in such circumstances that, but for the merger, the person taking the estate or interest would be bound by the charge,
If the title to the legal estate by virtue of which a spouse is entitled to occupy a dwelling-house (including any legal estate held by trustees for that spouse) is registered under the Land Registration Act 1925 or any enactment replaced by that Act—
registration of a land charge affecting the dwelling-house by virtue of this Part is to be effected by registering a notice under that Act; and
a spouse’s matrimonial home rights are not an overriding interest within the meaning of that Act affecting the dwelling-house even though the spouse is in actual occupation of the dwelling-house.
A spouse’s matrimonial home rights (whether or not constituting a charge) do not entitle that spouse to lodge a caution under section 54 of the Land Registration Act 1925.
If— then if, after the date of the creation of the mortgage (“the first mortgage”), the charge is registered under section 2 of the Land Charges Act 1972, the charge is, for the purposes of section 94 of the Law of Property Act 1925 (which regulates the rights of mortgagees to make further advances ranking in priority to subsequent mortgages), to be deemed to be a mortgage subsequent in date to the first mortgage.
a spouse’s matrimonial home rights are a charge on the estate of the other spouse or of trustees of the other spouse, and
that estate is the subject of a mortgage,
It is hereby declared that a charge under subsection (2) or (5) is not registrable under subsection (10) or under section 2 of the Land Charges Act 1972 unless it is a charge on a legal estate.
Schedule 4 re-enacts with consequential amendments and minor modifications provisions of the Matrimonial Homes Act 1983.
If—
a person (“the person entitled”)—
is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, or
has matrimonial home rights in relation to a dwelling-house, and
the dwelling-house— the person entitled may apply to the court for an order containing any of the provisions specified in subsections (3), (4) and (5).
is or at any time has been the home of the person entitled and of another person with whom he is associated, or
was at any time intended by the person entitled and any such other person to be their home,
If an agreement to marry is terminated, no application under this section may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.
An order under this section may—
enforce the applicant’s entitlement to remain in occupation as against the other person (“the respondent”);
require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;
regulate the occupation of the dwelling-house by either or both parties;
if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;
if the respondent has matrimonial home rights in relation to the dwelling-house and the applicant is the other spouse, restrict or terminate those rights;
require the respondent to leave the dwelling-house or part of the dwelling-house; or
exclude the respondent from a defined area in which the dwelling-house is included.
An order under this section may declare that the applicant is entitled as mentioned in subsection (1)(a)(i) or has matrimonial home rights.
If the applicant has matrimonial home rights and the respondent is the other spouse, an order under this section made during the marriage may provide that those rights are not brought to an end by—
the death of the other spouse; or
the termination (otherwise than by death) of the marriage.
In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including—
the housing needs and housing resources of each of the parties and of any relevant child;
the financial resources of each of the parties;
the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and
the conduct of the parties in relation to each other and otherwise.
If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that—
the respondent or any relevant child is likely to suffer significant harm if the order is made; and
the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.
The court may exercise its powers under subsection (5) in any case where it considers that in all the circumstances it is just and reasonable to do so.
An order under this section—
may not be made after the death of either of the parties mentioned in subsection (1); and
except in the case of an order made by virtue of subsection (5)(a), ceases to have effect on the death of either party.
An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.
If a spouse’s matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse—
an order under section 33 against the other spouse has, except so far as a contrary intention appears, the same effect against persons deriving title under the other spouse or under the trustees and affected by the charge, and
sections 33(1), (3), (4) and (10) and 30(3) to (6) apply in relation to any person deriving title under the other spouse or under the trustees and affected by the charge as they apply in relation to the other spouse.
The court may make an order under section 33 by virtue of subsection (1)(b) if it considers that in all the circumstances it is just and reasonable to do so.
This section applies if—
one former spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation;
the other former spouse is not so entitled; and
the dwelling-house was at any time their matrimonial home or was at any time intended by them to be their matrimonial home.
The former spouse not so entitled may apply to the court for an order under this section against the other former spouse (“the respondent”).
If the applicant is in occupation, an order under this section must contain provision—
giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order; and
prohibiting the respondent from evicting or excluding the applicant during that period.
If the applicant is not in occupation, an order under this section must contain provision—
giving the applicant the right to enter into and occupy the dwelling-house for the period specified in the order; and
requiring the respondent to permit the exercise of that right.
An order under this section may also—
regulate the occupation of the dwelling-house by either or both of the parties;
prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;
require the respondent to leave the dwelling-house or part of the dwelling-house; or
exclude the respondent from a defined area in which the dwelling-house is included.
In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including—
the housing needs and housing resources of each of the parties and of any relevant child;
the financial resources of each of the parties;
the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child;
the conduct of the parties in relation to each other and otherwise;
the length of time that has elapsed since the parties ceased to live together;
the length of time that has elapsed since the marriage was dissolved or annulled; and
the existence of any pending proceedings between the parties—
for an order under section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc.);
for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or
relating to the legal or beneficial ownership of the dwelling-house.
In deciding whether to exercise its power to include one or more of the provisions referred to in subsection (5) (“a subsection (5) provision”) and (if so) in what manner, the court shall have regard to all the circumstances including the matters mentioned in subsection (6)(a) to (e).
If the court decides to make an order under this section and it appears to it that, if the order does not include a subsection (5) provision, the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent, the court shall include the subsection (5) provision in the order unless it appears to the court that—
the respondent or any relevant child is likely to suffer significant harm if the provision is included in the order; and
the harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.
An order under this section—
may not be made after the death of either of the former spouses; and
ceases to have effect on the death of either of them.
An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one or more occasions for a further specified period not exceeding six months.
A former spouse who has an equitable interest in the dwelling-house or in the proceeds of sale of the dwelling-house but in whom there is not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house is to be treated (but only for the purpose of determining whether he is eligible to apply under this section) as not being entitled to occupy the dwelling-house by virtue of that interest.
Subsection (11) does not prejudice any right of such a former spouse to apply for an order under section 33.
So long as an order under this section remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—
as if he were the spouse entitled to occupy the dwelling-house by virtue of that section; and
as if the respondent were the other spouse.
This section applies if—
one cohabitant or former cohabitant is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation;
the other cohabitant or former cohabitant is not so entitled; and
that dwelling-house is the home in which they live together as husband and wife or a home in which they at any time so lived together or intended so to live together.
The cohabitant or former cohabitant not so entitled may apply to the court for an order under this section against the other cohabitant or former cohabitant (“the respondent”).
If the applicant is in occupation, an order under this section must contain provision—
giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order; and
prohibiting the respondent from evicting or excluding the applicant during that period.
If the applicant is not in occupation, an order under this section must contain provision—
giving the applicant the right to enter into and occupy the dwelling-house for the period specified in the order; and
requiring the respondent to permit the exercise of that right.
An order under this section may also—
regulate the occupation of the dwelling-house by either or both of the parties;
prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;
require the respondent to leave the dwelling-house or part of the dwelling-house; or
exclude the respondent from a defined area in which the dwelling-house is included.
In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including—
the housing needs and housing resources of each of the parties and of any relevant child;
the financial resources of each of the parties;
the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child;
the conduct of the parties in relation to each other and otherwise;
the nature of the parties' relationship;
the length of time during which they have lived together as husband and wife;
whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility;
the length of time that has elapsed since the parties ceased to live together; and
the existence of any pending proceedings between the parties—
for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or
relating to the legal or beneficial ownership of the dwelling-house.
In deciding whether to exercise its powers to include one or more of the provisions referred to in subsection (5) (“a subsection (5) provision”) and (if so) in what manner, the court shall have regard to all the circumstances including—
the matters mentioned in subsection (6)(a) to (d); and
the questions mentioned in subsection (8).
The questions are—
whether the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if the subsection (5) provision is not included in the order; and
whether the harm likely to be suffered by the respondent or child if the provision is included is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.
An order under this section—
may not be made after the death of either of the parties; and
ceases to have effect on the death of either of them.
An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months.
A person who has an equitable interest in the dwelling-house or in the proceeds of sale of the dwelling-house but in whom there is not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house is to be treated (but only for the purpose of determining whether he is eligible to apply under this section) as not being entitled to occupy the dwelling-house by virtue of that interest.
Subsection (11) does not prejudice any right of such a person to apply for an order under section 33.
So long as the order remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—
as if he were a spouse entitled to occupy the dwelling-house by virtue of that section; and
as if the respondent were the other spouse.
This section applies if—
one spouse or former spouse and the other spouse or former spouse occupy a dwelling-house which is or was the matrimonial home; but
neither of them is entitled to remain in occupation—
by virtue of a beneficial estate or interest or contract; or
by virtue of any enactment giving him the right to remain in occupation.
Either of the parties may apply to the court for an order against the other under this section.
An order under this section may—
require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;
regulate the occupation of the dwelling-house by either or both of the spouses;
require the respondent to leave the dwelling-house or part of the dwelling-house; or
exclude the respondent from a defined area in which the dwelling-house is included.
Subsections (6) and (7) of section 33 apply to the exercise by the court of its powers under this section as they apply to the exercise by the court of its powers under subsection (3) of that section.
An order under this section must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one or more occasions for a further specified period not exceeding six months.
This section applies if—
one cohabitant or former cohabitant and the other cohabitant or former cohabitant occupy a dwelling-house which is the home in which they live or lived together as husband and wife; but
neither of them is entitled to remain in occupation—
by virtue of a beneficial estate or interest or contract; or
by virtue of any enactment giving him the right to remain in occupation.
Either of the parties may apply to the court for an order against the other under this section.
An order under this section may—
require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;
regulate the occupation of the dwelling-house by either or both of the parties;
require the respondent to leave the dwelling-house or part of the dwelling-house; or
exclude the respondent from a defined area in which the dwelling-house is included.
In deciding whether to exercise its powers to include one or more of the provisions referred to in subsection (3) (“a subsection (3) provision”) and (if so) in what manner, the court shall have regard to all the circumstances including—
the housing needs and housing resources of each of the parties and of any relevant child;
the financial resources of each of the parties;
the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child;
the conduct of the parties in relation to each other and otherwise; and
the questions mentioned in subsection (5).
The questions are—
whether the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if the subsection (3) provision is not included in the order; and
whether the harm likely to be suffered by the respondent or child if the provision is included is as great as or greater than the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the provision is not included.
An order under this section shall be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months.
In this Part an“occupation order” means an order under section 33, 35, 36, 37 or 38.
An application for an occupation order may be made in other family proceedings or without any other family proceedings being instituted.
If— the court may make an order under that other section.
an application for an occupation order is made under section 33, 35, 36, 37 or 38, and
the court considers that it has no power to make the order under the section concerned, but that it has power to make an order under one of the other sections,
The fact that a person has applied for an occupation order under sections 35 to 38, or that an occupation order has been made, does not affect the right of any person to claim a legal or equitable interest in any property in any subsequent proceedings (including subsequent proceedings under this Part).
The court may on, or at any time after, making an occupation order under section 33, 35 or 36—
impose on either party obligations as to—
the repair and maintenance of the dwelling-house; or
the discharge of rent, mortgage payments or other outgoings affecting the dwelling-house;
order a party occupying the dwelling-house or any part of it (including a party who is entitled to do so by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation) to make periodical payments to the other party in respect of the accommodation, if the other party would (but for the order) be entitled to occupy the dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any such enactment;
grant either party possession or use of furniture or other contents of the dwelling-house;
order either party to take reasonable care of any furniture or other contents of the dwelling-house;
order either party to take reasonable steps to keep the dwelling-house and any furniture or other contents secure.
In deciding whether and, if so, how to exercise its powers under this section, the court shall have regard to all the circumstances of the case including—
the financial needs and financial resources of the parties; and
the financial obligations which they have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child.
An order under this section ceases to have effect when the occupation order to which it relates ceases to have effect.
This section applies if the parties are cohabitants or former cohabitants.
Where the court is required to consider the nature of the parties' relationship, it is to have regard to the fact that they have not given each other the commitment involved in marriage.
In this Part a“non-molestation order” means an order containing either or both of the following provisions—
provision prohibiting a person (“the respondent”) from molesting another person who is associated with the respondent;
provision prohibiting the respondent from molesting a relevant child.
The court may make a non-molestation order—
if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or
if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no such application has been made.
In subsection (2)“family proceedings” includes proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act).
Where an agreement to marry is terminated, no application under subsection (2)(a) may be made by virtue of section 62(3)(e) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.
In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being—
of the applicant or, in a case falling within subsection (2)(b), the person for whose benefit the order would be made; and
of any relevant child.
A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.
A non-molestation order may be made for a specified period or until further order.
A non-molestation order which is made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed.
A child under the age of sixteen may not apply for an occupation order or a non-molestation order except with the leave of the court.
The court may grant leave for the purposes of subsection (1) only if it is satisfied that the child has sufficient understanding to make the proposed application for the occupation order or non-molestation order.
Subject to subsection (2), the court shall not make an order under section 33 or 42 by virtue of section 62(3)(e) unless there is produced to it evidence in writing of the existence of the agreement to marry.
Subsection (1) does not apply if the court is satisfied that the agreement to marry was evidenced by—
the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or
a ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.
The court may, in any case where it considers that it is just and convenient to do so, make an occupation order or a non-molestation order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.
In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including—
any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved—
where the court is a magistrates' court, in effecting service of proceedings; or
in any other case, in effecting substituted service.
If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.
If, at a full hearing, the court makes an occupation order (“the full order”), then—
for the purposes of calculating the maximum period for which the full order may be made to have effect, the relevant section is to apply as if the period for which the full order will have effect began on the date on which the initial order first had effect; and
the provisions of section 36(10) or 38(6) as to the extension of orders are to apply as if the full order and the initial order were a single order.
In this section—
“full hearing” means a hearing of which notice has been given to all the parties in accordance with rules of court;
In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from any party to the proceedings.
No power of arrest may be attached to any undertaking given under subsection (1).
The court shall not accept an undertaking under subsection (1) in any case where apart from this section a power of arrest would be attached to the order.
An undertaking given to a court under subsection (1) is enforceable as if it were an order of the court.
This section has effect without prejudice to the powers of the High Court and the county court apart from this section.
In this section“a relevant order” means an occupation order or a non-molestation order.
If— it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.
the court makes a relevant order; and
it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child,
Subsection (2) does not apply in any case where the relevant order is made by virtue of section 45(1), but in such a case the court may attach a power of arrest to one or more provisions of the order if it appears to it—
that the respondent has used or threatened violence against the applicant or a relevant child; and
that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent, if the power of arrest is not attached to those provisions immediately.
If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of a relevant order, it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order.
Any period specified for the purposes of subsection (4) may be extended by the court (on one or more occasions) on an application to vary or discharge the relevant order.
If, by virtue of subsection (2) or (3), a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision.
If a power of arrest is attached under subsection (2) or (3) to certain provisions of the order and the respondent is arrested under subsection (6)— In reckoning for the purposes of this subsection any period of 24 hours, no account is to be taken of Christmas Day, Good Friday or any Sunday.
he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest; and
if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him.
If the court has made a relevant order but— then, if at any time the applicant considers that the respondent has failed to comply with the order, he may apply to the relevant judicial authority for the issue of a warrant for the arrest of the respondent.
has not attached a power of arrest under subsection (2) or (3) to any provisions of the order, or
has attached that power only to certain provisions of the order,
The relevant judicial authority shall not issue a warrant on an application under subsection (8) unless—
the application is substantiated on oath; and
the relevant judicial authority has reasonable grounds for believing that the respondent has failed to comply with the order.
If a person is brought before a court by virtue of a warrant issued under subsection (9) and the court does not dispose of the matter forthwith, the court may remand him.
Schedule 5 (which makes provision corresponding to that applying in magistrates' courts in civil cases under sections 128 and 129 of the Magistrates' Courts Act 1980) has effect in relation to the powers of the High Court and a county court to remand a person by virtue of this section.
If a person remanded under this section is granted bail (whether in the High Court or a county court under Schedule 5 or in a magistrates' court under section 128 or 129 of the Magistrates' Courts Act 1980), he may be required by the relevant judicial authority to comply, before release on bail or later, with such requirements as appear to that authority to be necessary to secure that he does not interfere with witnesses or otherwise obstruct the course of justice.
If the relevant judicial authority has reason to consider that a medical report will be required, any power to remand a person under section 47(7)(b) or (10) may be exercised for the purpose of enabling a medical examination and report to be made.
If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judicial authority remands the accused in custody.
If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time.
If there is reason to suspect that a person who has been arrested— is suffering from mental illness or severe mental impairment, the relevant judicial authority has the same power to make an order under section 35 of the Mental Health Act 1983 (remand for report on accused’s mental condition) as the Crown Court has under section 35 of the Act of 1983 in the case of an accused person within the meaning of that section.
under section 47(6), or
under a warrant issued on an application made under section 47(8),
An occupation order or non-molestation order may be varied or discharged by the court on an application by—
the respondent, or
the person on whose application the order was made.
In the case of a non-molestation order made by virtue of section 42(2)(b), the order may be varied or discharged by the court even though no such application has been made.
If a spouse’s matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse, an order under section 33 against the other spouse may also be varied or discharged by the court on an application by any person deriving title under the other spouse or under the trustees and affected by the charge.
If, by virtue of section 47(3), a power of arrest has been attached to certain provisions of an occupation order or non-molestation order, the court may vary or discharge the order under subsection (1) in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).
If, under section 63(3) of the Magistrates' Courts Act 1980, a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order of committal is to be suspended for such period or on such terms and conditions as it may specify.
In subsection (1)“a relevant requirement” means—
an occupation order or non-molestation order;
an exclusion requirement included by virtue of section 38A of the Children Act 1989 in an interim care order made under section 38 of that Act; or
an exclusion requirement included by virtue of section 44A of the Children Act 1989 in an emergency protection order under section 44 of that Act.
A magistrates' court has the same power to make a hospital order or guardianship order under section 37 of the Mental Health Act 1983 or an interim hospital order under section 38 of that Act in the case of a person suffering from mental illness or severe mental impairment who could otherwise be committed to custody for breach of a relevant requirement as a magistrates' court has under those sections in the case of a person convicted of an offence punishable on summary conviction with imprisonment.
In subsection (1)“a relevant requirement” has the meaning given by section 50(2).
Schedule 6 makes amendments of the provisions of the Children Act 1989 relating to interim care orders and emergency protection orders.
Schedule 7 makes provision in relation to the transfer of certain tenancies on divorce etc. or on separation of cohabitants.
In determining for the purposes of this Part whether a person is entitled to occupy a dwelling-house by virtue of an estate or interest, any right to possession of the dwelling-house conferred on a mortgagee of the dwelling-house under or by virtue of his mortgage is to be disregarded.
Subsection (1) applies whether or not the mortgagee is in possession.
Where a person (“A”) is entitled to occupy a dwelling-house by virtue of an estate or interest, a connected person does not by virtue of— have any larger right against the mortgagee to occupy the dwelling-house than A has by virtue of his estate or interest and of any contract with the mortgagee.
any matrimonial home rights conferred by section 30, or
any rights conferred by an order under section 35 or 36,
Subsection (3) does not apply, in the case of matrimonial home rights, if under section 31 those rights are a charge, affecting the mortgagee, on the estate or interest mortgaged.
In this section“connected person”, in relation to any person, means that person’s spouse, former spouse, cohabitant or former cohabitant.
This section applies if a mortgagee of land which consists of or includes a dwelling-house brings an action in any court for the enforcement of his security.
A connected person who is not already a party to the action is entitled to be made a party in the circumstances mentioned in subsection (3).
The circumstances are that—
the connected person is enabled by section 30(3) or (6) (or by section 30(3) or (6) as applied by section 35(13) or 36(13)), to meet the mortgagor’s liabilities under the mortgage;
he has applied to the court before the action is finally disposed of in that court; and
the court sees no special reason against his being made a party to the action and is satisfied—
that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor’s liabilities or obligations as might affect the outcome of the proceedings; or
that the expectation of it should be considered under section 36 of the Administration of Justice Act 1970.
In this section“connected person” has the same meaning as in section 54.
This section applies if a mortgagee of land which consists, or substantially consists, of a dwelling-house brings an action for the enforcement of his security, and at the relevant time there is—
in the case of unregistered land, a land charge of Class F registered against the person who is the estate owner at the relevant time or any person who, where the estate owner is a trustee, preceded him as trustee during the subsistence of the mortgage; or
in the case of registered land, a subsisting registration of—
a notice under section 31(10);
a notice under section 2(8) of the Matrimonial Homes Act 1983; or
a notice or caution under section 2(7) of the Matrimonial Homes Act 1967.
If the person on whose behalf— is not a party to the action, the mortgagee must serve notice of the action on him.
the land charge is registered, or
the notice or caution is entered,
If— the relevant time is the date of the certificate.
an official search has been made on behalf of the mortgagee which would disclose any land charge of Class F, notice or caution within subsection (1)(a) or (b),
a certificate of the result of the search has been issued, and
the action is commenced within the priority period,
In any other case the relevant time is the time when the action is commenced.
The priority period is, for both registered and unregistered land, the period for which, in accordance with section 11(5) and (6) of the Land Charges Act 1972, a certificate on an official search operates in favour of a purchaser.
For the purposes of this Part“the court” means the High Court, a county court or a magistrates' court.
Subsection (1) is subject to the provision made by or under the following provisions of this section, to section 59 and to any express provision as to the jurisdiction of any court made by any other provision of this Part.
The Lord Chancellor may by order specify proceedings under this Part which may only be commenced in—
a specified level of court;
a court which falls within a specified class of court; or
a particular court determined in accordance with, or specified in, the order.
The Lord Chancellor may by order specify circumstances in which specified proceedings under this Part may only be commenced in—
a specified level of court;
a court which falls within a specified class of court; or
a particular court determined in accordance with, or specified in, the order.
The Lord Chancellor may by order provide that in specified circumstances the whole, or any specified part of any specified proceedings under this Part is to be transferred to—
a specified level of court;
a court which falls within a specified class of court; or
a particular court determined in accordance with, or specified in, the order.
An order under subsection (5) may provide for the transfer to be made at any stage, or specified stage, of the proceedings and whether or not the proceedings, or any part of them, have already been transferred.
An order under subsection (5) may make such provision as the Lord Chancellor thinks appropriate for excluding specified proceedings from the operation of section 38 or 39 of the Matrimonial and Family Proceedings Act 1984 (transfer of family proceedings) or any other enactment which would otherwise govern the transfer of those proceedings, or any part of them.
For the purposes of subsections (3), (4) and (5), there are three levels of court—
the High Court;
any county court; and
any magistrates' court.
The Lord Chancellor may by order make provision for the principal registry of the Family Division of the High Court to be treated as if it were a county court for specified purposes of this Part, or of any provision made under this Part.
Any order under subsection (9) may make such provision as the Lord Chancellor thinks expedient for the purpose of applying (with or without modifications) provisions which apply in relation to the procedure in county courts to the principal registry when it acts as if it were a county court.
In this section“specified” means specified by an order under this section.
The powers of the court in relation to contempt of court arising out of a person’s failure to comply with an order under this Part may be exercised by the relevant judicial authority.
A magistrates' court shall not be competent to entertain any application, or make any order, involving any disputed question as to a party’s entitlement to occupy any property by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, unless it is unnecessary to determine the question in order to deal with the application or make the order.
A magistrates' court may decline jurisdiction in any proceedings under this Part if it considers that the case can more conveniently be dealt with by another court.
The powers of a magistrates' court under section 63(2) of the Magistrates' Courts Act 1980 to suspend or rescind orders shall not apply in relation to any order made under this Part.
Rules of court may provide for a prescribed person, or any person in a prescribed category, (“a representative”) to act on behalf of another in relation to proceedings to which this Part applies.
Rules made under this section may, in particular, authorise a representative to apply for an occupation order or for a non-molestation order for which the person on whose behalf the representative is acting could have applied.
Rules made under this section may prescribe—
conditions to be satisfied before a representative may make an application to the court on behalf of another; and
considerations to be taken into account by the court in determining whether, and if so how, to exercise any of its powers under this Part when a representative is acting on behalf of another.
Any rules made under this section may be made so as to have effect for a specified period and may make consequential or transitional provision with respect to the expiry of the specified period.
Any such rules may be replaced by further rules made under this section.
An appeal shall lie to the High Court against— but no appeal shall lie against any exercise by a magistrates' court of the power conferred by section 59(2).
the making by a magistrates' court of any order under this Part, or
any refusal by a magistrates' court to make such an order,
On an appeal under this section, the High Court may make such orders as may be necessary to give effect to its determination of the appeal.
Where an order is made under subsection (2), the High Court may also make such incidental or consequential orders as appear to it to be just.
Any order of the High Court made on an appeal under this section (other than one directing that an application be re-heard by a magistrates' court) shall, for the purposes— be treated as if it were an order of the magistrates' court from which the appeal was brought and not an order of the High Court.
of the enforcement of the order, and
of any power to vary, revive or discharge orders,
The Lord Chancellor may by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of any order under section 57(5).
Except to the extent provided for in any order made under subsection (5), no appeal may be made against any decision of a kind mentioned in that subsection.
For the purposes of this Part—
“cohabitants” are a man and a woman who, although not married to each other, are living together as husband and wife; and
“former cohabitants” is to be read accordingly, but does not include cohabitants who have subsequently married each other.
In this Part,“relevant child”, in relation to any proceedings under this Part, means—
any child who is living with or might reasonably be expected to live with either party to the proceedings;
any child in relation to whom an order under the Adoption Act 1976 or the Children Act 1989 is in question in the proceedings; and
any other child whose interests the court considers relevant.
For the purposes of this Part, a person is associated with another person if—
they are or have been married to each other;
they are cohabitants or former cohabitants;
they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
they are relatives;
they have agreed to marry one another (whether or not that agreement has been terminated);
in relation to any child, they are both persons falling within subsection (4); or
they are parties to the same family proceedings (other than proceedings under this Part).
A person falls within this subsection in relation to a child if—
he is a parent of the child; or
he has or has had parental responsibility for the child.
If a child has been adopted or has been freed for adoption by virtue of any of the enactments mentioned in section 16(1) of the Adoption Act 1976, two persons are also associated with each other for the purposes of this Part if—
one is a natural parent of the child or a parent of such a natural parent; and
the other is the child or any person—
who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or
with whom the child has at any time been placed for adoption.
A body corporate and another person are not, by virtue of subsection (3)(f) or (g), to be regarded for the purposes of this Part as associated with each other.
In this Part—
where the order was made by the High Court, a judge of that court;
“development” means physical, intellectual, emotional, social or behavioural development;
“the relevant judicial authority”, in relation to any order under this Part, means—
in relation to a person who has reached the age of eighteen years, means ill-treatment or the impairment of health; and
The enactments referred to in the definition of“family proceedings” are—
Part II;
this Part;
the Matrimonial Causes Act 1973;
the Adoption Act 1976;
the Domestic Proceedings and Magistrates' Courts Act 1978;
Part III of the Matrimonial and Family Proceedings Act 1984;
Parts I, II and IV of the Children Act 1989;
section 30 of the Human Fertilisation and Embryology Act 1990.
Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.
For the purposes of sections 31, 32, 53 and 54 and such other provisions of this Part (if any) as may be prescribed, this Part is to have effect as if paragraph (b) of the definition of “dwelling-house” were omitted.
It is hereby declared that this Part applies as between the parties to a marriage even though either of them is, or has at any time during the marriage been, married to more than one person.
The Lord Chancellor may by regulations provide for the separate representation of children in proceedings in England and Wales which relate to any matter in respect of which a question has arisen, or may arise, under—
Part II;
Part IV;
the 1973 Act; or
the Domestic Proceedings and Magistrates' Courts Act 1978.
The regulations may provide for such representation only in specified circumstances.
Any power to make rules, orders or regulations which is conferred by this Act is exercisable by statutory instrument.
Any statutory instrument made under this Act may—
contain such incidental, supplemental, consequential and transitional provision as the Lord Chancellor considers appropriate; and
make different provision for different purposes.
Any statutory instrument containing an order, rules or regulations made under this Act, other than an order made under section 5(8) or 67(3), shall be subject to annulment by a resolution of either House of Parliament.
No order shall be made under section 5(8) unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
This section does not apply to rules of court made, or any power to make rules of court, for the purposes of this Act.
Schedule 8 makes minor and consequential amendments.
Schedule 9 provides for the making of other modifications consequential on provisions of this Act, makes transitional provisions and provides for savings.
Schedule 10 repeals certain enactments.
This Act may be cited as the Family Law Act 1996.
Section 65 and this section come into force on the passing of this Act.
The other provisions of this Act come into force on such day as the Lord Chancellor may by order appoint; and different days may be appointed for different purposes.
This Act, other than section 17, extends only to England and Wales, except that—
in Schedule 8—
the amendments of section 38 of the Family Law Act 1986 extend also to Northern Ireland;
the amendments of the Judicial Proceedings (Regulation of Reports) Act 1926 extend also to Scotland; and
the amendments of the Maintenance Orders Act 1950, the Civil Jurisdiction and Judgments Act 1982, the Finance Act 1985 and sections 42 and 51 of the Family Law Act 1986 extend also to both Northern Ireland and Scotland; and
in Schedule 10, the repeal of section 2(1)(b) of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 extends also to Scotland.
Section 9(6).
The circumstances referred to in section 9(7)(a) are that—
the requirements of section 11 have been satisfied;
the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements; and
the applicant has made an application to the court for financial relief and has complied with all requirements of the court in relation to proceedings for financial relief but—
the other party has delayed in complying with requirements of the court or has otherwise been obstructive; or
for reasons which are beyond the control of the applicant, or of the other party, the court has been prevented from obtaining the information which it requires to determine the financial position of the parties.
The circumstances referred to in section 9(7)(b) are that—
the requirements of section 11 have been satisfied;
the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements;
because of— the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and
the ill health or disability of the applicant, the other party or a child of the family (whether physical or mental), or
an injury suffered by the applicant, the other party or a child of the family,
a delay in making the order applied for under section 3—
would be significantly detrimental to the welfare of any child of the family; or
would be seriously prejudicial to the applicant.
The circumstances referred to in section 9(7)(c) are that—
the requirements of section 11 have been satisfied;
the applicant has found it impossible to contact the other party; and
as a result, it has been impossible for the applicant to reach agreement with the other party about their financial arrangements.
The circumstances referred to in section 9(7)(d) are that—
the requirements of section 11 have been satisfied;
an occupation order or a non-molestation order is in force in favour of the applicant or a child of the family, made against the other party;
the applicant has, during the period for reflection and consideration, taken such steps as are reasonably practicable to try to reach agreement about the parties' financial arrangements;
the applicant has not been able to reach agreement with the other party about those arrangements and is unlikely to be able to do so in the foreseeable future; and
a delay in making the order applied for under section 3—
would be significantly detrimental to the welfare of any child of the family; or
would be seriously prejudicial to the applicant.
Section 9 is not to be read as requiring any order or agreement to have been carried into effect at the time when the court is considering whether arrangements for the future have been made by the parties. The fact that an appeal is pending against an order of the kind mentioned in section 9(2)(a) is to be disregarded.
In section 9 and this Schedule“financial arrangements” has the same meaning as in section 34(2) of the 1973 Act.
In section 9(2)(b)“negotiated agreement” means a written agreement between the parties as to future arrangements—
which has been reached as the result of mediation or any other form of negotiation involving a third party; and
which satisfies such requirements as may be imposed by rules of court.
Any declaration of a kind mentioned in section 9— The validity of a divorce order or separation order made by reference to such a declaration is not to be affected by any inaccuracy in the declaration.
In this Schedule—
Section 15.
Part II of the 1973 Act (financial provision and property adjustment orders) is amended as follows.
For section 21 (definitions) substitute—
Insert, before section 23—
For section 23 substitute—
Insert, before section 24—
For section 24, substitute—
In section 28(1) (duration of a continuing financial provision order in favour of a party to a marriage), for paragraphs (a) and (b) substitute— In section 29 (duration of continuing financial provision order in favour of a child of the family) insert after subsection (1)—
Insert after section 31—
Section 19(5).
Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (which relates to the staying of matrimonial proceedings) is amended as follows.
In paragraph 1, for “The following five paragraphs” substitute “Paragraphs 2 to 6 below”.
For paragraph 2 substitute—
Insert, after paragraph 4—
For paragraph 7 substitute—
Paragraph 8 is amended as follows. This paragraph applies where divorce proceedings are continuing in the court with respect to a marriage. Where it appears to the court, on the application of a party to the marriage— In sub-paragraph (1), in the words after paragraph (d), for “proceedings” substitute “divorce proceedings”. The effect of such an order is that, while it is in force—
Paragraph 9 is amended as follows. Sub-paragraph (1A) below applies where— The court may make an order staying the proceedings if it appears to the court— Where an application for a stay is pending under paragraph 8 above, the court shall not make an order under sub-paragraph (1A) staying marital proceedings in relation to the marriage. In sub-paragraph 4, after “pending in the court,” insert “other than marital proceedings,”. The effect of an order under sub-paragraph (1A) for a stay of marital proceedings is that, while it is in force—
Where the court discharges an order staying any proceedings, it may direct that the whole or a specified part of any period while the order has been in force— Where the court discharges an order under paragraph 8 above, it shall not again make such an order in relation to the marriage except in a case where the obligation to do so arises under that paragraph following receipt by the court of a statement of marital breakdown after the discharge of the order.
Paragraph 11 is amended as follows. Sub-paragraphs (2) and (3) below apply where a stay of marital proceedings or proceedings for nullity of marriage— In this paragraph— The condition is that the order is, or (apart from this paragraph) could be, made in connection with the proceedings to which the stay applies. In sub-paragraph (2)— In sub-paragraph (3)— Where a secured periodical payments order within the meaning of the Matrimonial Causes Act 1973— has been made under section 22A(1)(b) or 23(1)(b) or (2)(b) of that Act, but ceases to have effect by virtue of sub-paragraph (2) or (3) above, Nothing in sub-paragraphs (2) and (3) above affects any relevant order or lump sum order or any power to make such an order in so far as— In sub-paragraph (5)(c), for the words from “in connection” onwards substitute “where a stay no longer applies”.
Section 32.
In this Schedule— In sub-paragraph (1)—
Where one spouse is entitled by virtue of section 31 to a registrable charge in respect of each of two or more dwelling-houses, only one of the charges to which that spouse is so entitled shall be registered under section 31(10) or under section 2 of the Land Charges Act 1972 at any one time, and if any of those charges is registered under either of those provisions the Chief Land Registrar, on being satisfied that any other of them is so registered, shall cancel the registration of the charge first registered.