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SCHEDULE 8 continued PART I continued
36 In paragraph 1(3) of Schedule 6 to the Agricultural Holdings Act 1986 (spouse of close relative not to be treated as such when marriage subject to decree nisi etc.), for the words from “when” to the end substitute “when a separation order or a divorce order under the Family Law Act 1996 is in force in relation to the relative’s marriage or that marriage is the subject of a decree nisi of nullity.”
37 (1) The Family Law Act 1986 is amended as follows.
(2) For section 2(1) and (2) (jurisdiction to make orders under section 1) substitute—
“(1) A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order with respect to a child unless—
(a) the case falls within section 2A below; or
(b) in any other case, the condition in section 3 below is satisfied.”
(3) For section 2A(1) (jurisdiction in or in connection with matrimonial proceedings), substitute—
“(1) Subject to subsections (2) to (4) below, a case falls within this section for the purposes of the making of a section 1(1)(a) order if that order is made—
(a) at a time when—
(i) a statement of marital breakdown under section 5 of the Family Law Act 1996 with respect to the marriage of the parents of the child concerned has been received by the court; and
(ii) it is or may become possible for an application for a divorce order or for a separation order to be made by reference to that statement; or
(b) at a time when an application in relation to that marriage for a divorce order, or for a separation order under the Act of 1996, has been made and not withdrawn.
(1A) A case also falls within this section for the purposes of the making of a section 1(1)(a) order if that order is made in or in connection with any proceedings for the nullity of the marriage of the parents of the child concerned and—
(a) those proceedings are continuing; or
(b) the order is made—
(i) immediately on the dismissal, after the beginning of the trial, of the proceedings; and
(ii) on an application made before the dismissal.”
(4) In section 2A(2), for the words from the beginning to “judicial separation” substitute “A case does not fall within this section if a separation order under the Family Law Act 1996 is in force in relation to the marriage of the parents of the child concerned if,”.
(5) In section 2A(3), for “in which the other proceedings there referred to” substitute “in Scotland, Northern Ireland or a specified dependent territory in which the proceedings for divorce or nullity”.
(6) In section 2A(4)—
(a) for “in or in connection with matrimonial proceedings” substitute “by virtue of the case falling within this section”; and
(b) for “in or in connection with those proceedings” substitute “by virtue of section 2(1)(a) of this Act”.
(7) In section 3 (child habitually resident or present in England and Wales), for “section 2(2)” substitute “section 2(1)(b)”.
(8) In section 6 (duration and variation of Part I orders), for subsections (3A) and (3B) substitute—
“(3A) Subsection (3) above does not apply if the Part I order was made in a case falling within section 2A of this Act.”
(9) In section 38 (restriction on removal of wards of court from the jurisdiction), insert after subsection (3)—
“(4) The reference in subsection (2) above to a time when proceedings for divorce or judicial separation are continuing in respect of a marriage in another part of the United Kingdom includes, in relation to any case in which England and Wales would be another part of the United Kingdom, any time when—
(a) a statement of marital breakdown under section 5 of the Family Law Act 1996 with respect to that marriage has been received by the court and it is or may become possible for an application for a divorce order or for a separation order to be made by reference to that statement; or
(b) an application in relation to that marriage for a divorce order, or for a separation order under the Act of 1996, has been made and not withdrawn.”
(10) In section 42(2) (times when divorce etc. proceedings are to be treated as continuing for the purposes of certain restrictions on the removal of children from the jurisdiction), for the words from “unless” to the end substitute “be treated as continuing (irrespective of whether a divorce order, separation order or decree of nullity has been made)—
(a) from the time when a statement of marital breakdown under section 5 of the Family Law Act 1996 with respect to the marriage is received by the court in England and Wales until such time as the court may designate or, if earlier, until the time when—
(i) the child concerned attains the age of eighteen; or
(ii) it ceases, by virtue of section 5(3) or 7(9) of that Act (lapse of divorce or separation process) to be possible for an application for a divorce order, or for a separation order, to be made by reference to that statement; and
(b) from the time when a petition for nullity is presented in relation to the marriage in England and Wales or a petition for divorce, judicial separation or nullity is presented in relation to the marriage in Northern Ireland or a specified dependent territory, until the time when—
(i) the child concerned attains the age of eighteen; or
(ii) if earlier, proceedings on the petition are dismissed.”
(11) In section 51(4) (definitions), after the definition of “the relevant date” insert—
““judicial separation” includes a separation order under the Family Law Act 1996;”.
38 In section 4(2)(c) of the Landlord and Tenant Act 1987 (which refers to the 1973 Act), for “section 24” substitute “section 23A, 24”.
39 In paragraph 5A of Part II of Schedule 2 to the Legal Aid Act 1988 (excepted proceedings)—
(a) for “decree of divorce or judicial separation” substitute “a divorce order or a separation order”; and
(b) in sub-paragraph (b) of that paragraph, for “petition” substitute “application”.
40 In paragraph 4(1)(c) of Schedule 11 (which refers to the 1973 Act), for “section 24” substitute “section 23A or 24”.
41 (1) The Children Act 1989 is amended as follows.
(2) In section 6(3A) (revocation or appointment of guardian) for paragraph (a) substitute—
“(a) a court of civil jurisdiction in England and Wales by order dissolves, or by decree annuls, a marriage, or”.
(3) In section 8(3) after “means” insert “(subject to subsection (5))”.
(4) In section 8, insert after subsection (4)—
“(5) For the purposes of any reference in this Act to family proceedings, powers which under this Act are exercisable in family proceedings shall also be exercisable in relation to a child, without any such proceedings having been commenced or any application having been made to the court under this Act, if—
(a) a statement of marital breakdown under section 5 of the Family Law Act 1996 with respect to the marriage in relation to which that child is a child of the family has been received by the court; and
(b) it may, in due course, become possible for an application for a divorce order or for a separation order to be made by reference to that statement.”
42 In section 124(3)(c) of the Local Government and Housing Act 1989 (which refers to the 1973 Act), for “section 24” substitute “section 23A or 24”.
43 In section 166(4) of the Pensions Act 1995 (jurisdiction of the court under the Matrimonial Causes Act 1973 in respect of pensions to which that section applies) for “section 23” substitute “section 22A or 23”.
44 (1) The 1988 Act is amended as follows.
(2) In section 1, after “III” insert “IIIA”.
(3) In sections 1, 2(11), 3(2), 4(1), (2) and (4), 5(1) and (6), 6(2)(a) and (3)(a), 34(2)(c) and (d) and (11), 38(1) and (6) and 39(1) and (4)(a), after “assistance”, in each place, insert “, mediation”.
(4) In section 3(9), after paragraph (a) insert—
“(aa) the provision of mediation;”.
(5) In section 6, after subsection (3)(c) insert—
“(ca) any sum which is to be paid out of property on which it is charged under regulations under section 13C(5) below”.
(6) In section 15—
(a) in subsection (1), after “(3D)” insert “and (3F)”; and
(b) in subsection (3D), after “(3)” insert “and (3F)”.
(7) In section 16(9), leave out “and” at the end of paragraph (a).
(8) In section 38—
(a) in subsection (1)(f), after “legal representatives” insert “or mediators”; and
(b) in subsection (6), after “legal representative” insert “or mediator”.
(9) In section 43—
(a) after ““assistance”” insert “, “mediation””;
(b) after “(3)” insert “, (3A)”; and
(c) after the definition of “financial resources” insert—
““family matters” has the meaning assigned by section 13A(2);”.
45 In section 64 of the Land Registration Act 1925 (certificates to be produced and noted on dealings) in subsection (5) for “section 2(8) of the Matrimonial Homes Act 1983” substitute “section 31(10) of the Family Law Act 1996 and for “rights of occupation” substitute “matrimonial home rights””.
46 In section 1(6A) of the Land Charges Act 1972 (cases where county court has jurisdiction to vacate registration) in paragraph (d)—
(a) after “section 1 of the Matrimonial Homes Act 1983” insert “or section 33 of the Family Law Act 1996”; and
(b) for “that section” substitute “either of those sections”.
47 In section 2(7) of that Act (Class F land charge) for “Matrimonial Homes Act 1983” substitute “Part IV of the Family Law Act 1996”.
48 (1) Section 29A of the Land Compensation Act 1973 (spouses having statutory rights of occupation) is amended as follows.
(2) In subsection (1), for “rights of occupation (within the meaning of the Matrimonial Homes Act 1983)” substitute “matrimonial home rights (within the meaning of Part IV of the Family Law Act 1996)”.
(3) In subsection (2)(a), for “rights of occupation” substitute “matrimonial home rights”.
49 In section 65(1) of the Magistrates' Courts Act 1980 (meaning of family proceedings) after paragraph (o) insert—
“(p) Part IV of the Family Law Act 1996;”.
50 In Schedule 3 to the Contempt of Court Act 1981 (application of Magistrates' Courts Act 1980 to civil contempt proceedings), in paragraph 3 for the words from ““or, having been arrested”onwards substitute—
““or, having been arrested under section 47 of the Family Law Act 1996 in connection with the matter of the complaint, is at large after being remanded under subsection (7)(b) or (10) of that section.””
51 In Schedule 1 to the Supreme Court Act 1981 (distribution of business in High Court), in paragraph 3 (Family Division)—
(a) in paragraph (d), after “matrimonial proceedings” insert “or proceedings under Part IV of the Family Law Act 1996”, and
(b) in paragraph (f)(i), for “Domestic Violence and Matrimonial Proceedings Act 1976” substitute “Part IV of the Family Law Act 1996”.
52 For section 22 of the Matrimonial and Family Proceedings Act 1984 substitute—
(1) This section applies if—
(a) an application is made by a party to a marriage for an order for financial relief; and
(b) one of the parties is entitled, either in his own right or jointly with the other party, to occupy a dwelling-house situated in England or Wales by virtue of a tenancy which is a relevant tenancy within the meaning of Schedule 7 to the Family Law Act 1996 (certain statutory tenancies).
(2) The court may make in relation to that dwelling-house any order which it could make under Part II of that Schedule if—
(a) a divorce order,
(b) a separation order, or
(c) a decree of nullity of marriage,
had been made or granted in England and Wales in respect of the marriage.
(3) The provisions of paragraphs 10, 11 and 14(1) in Part III of that Schedule apply in relation to any order under this section as they apply to any order under Part II of that Schedule.”
53 (1) Section 85 of the Housing Act 1985 (extended discretion of court in certain proceedings for possession) is amended as follows.
(2) In subsection (5)—
(a) in paragraph (a), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “matrimonial home rights under Part IV of the Family Law Act 1996”; and
(b) for “those rights of occupation” substitute “those matrimonial home rights”.
(3) After subsection (5) insert—
“(5A) If proceedings are brought for possession of a dwelling-house which is let under a secure tenancy and—
(a) an order is in force under section 35 of the Family Law Act 1996 conferring rights on the former spouse of the tenant or an order is in force under section 36 of that Act conferring rights on a cohabitant or former cohabitant (within the meaning of that Act) of the tenant,
(b) the former spouse, cohabitant or former cohabitant is then in occupation of the dwelling-house, and
(c) the tenancy is terminated as a result of those proceedings,
the former spouse, cohabitant or former cohabitant shall, so long as he or she remains in occupation, have the same rights in relation to, or in connection with, any adjournment, stay, suspension or postponement in pursuance of this section as he or she would have if the rights conferred by the order referred to in paragraph (a) were not affected by the termination of the tenancy.”
54 In section 99B of that Act (persons qualifying for compensation for improvements) in subsection (2) for paragraph (f) substitute—
“(f) a spouse, former spouse, cohabitant or former cohabitant of the improving tenant to whom the tenancy has been transferred by an order made under Schedule 1 to the Matrimonial Homes Act 1983 or Schedule 7 to the Family Law Act 1996.”
55 In section 101 of that Act (rent not to be increased on account of tenant’s improvements) in subsection (3) for paragraph (d) substitute—
“(d) a spouse, former spouse, cohabitant or former cohabitant of the tenant to whom the tenancy has been transferred by an order made under Schedule 1 to the Matrimonial Homes Act 1983 or Schedule 7 to the Family Law Act 1996.”
56 In section 171B of that Act (extent of preserved right to buy: qualifying persons and dwelling-houses) in subsection (4)(b)(ii) after “Schedule 1 to the Matrimonial Homes Act 1983” insert “or Schedule 7 to the Family Law Act 1996”.
57 (1) Section 336 of the Insolvency Act 1986 (rights of occupation etc. of bankrupt’s spouse) is amended as follows.
(2) In subsection (1), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “matrimonial home rights under Part IV of the Family Law Act 1996”.
(3) In subsection (2)—
(a) for “rights of occupation under the Act of 1983” substitute “matrimonial home rights under the Act of 1996”, and
(b) in paragraph (b), for “under section 1 of that Act” substitute “under section 33 of that Act”.
(4) In subsection (4), for “section 1 of the Act of 1983” substitute “section 33 of the Act of 1996”.
58 (1) Section 337 of that Act is amended as follows.
(2) In subsection (2), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “matrimonial home rights under Part IV of the Family Law Act 1996”.
(3) For subsection (3) substitute—
“(3) The Act of 1996 has effect, with the necessary modifications, as if—
(a) the rights conferred by paragraph (a) of subsection (2) were matrimonial home rights under that Act,
(b) any application for such leave as is mentioned in that paragraph were an application for an order under section 33 of that Act, and
(c) any charge under paragraph (b) of that subsection on the estate or interest of the trustee were a charge under that Act on the estate or interest of a spouse.”
(4) In subsections (4) and (5) for “section 1 of the Act of 1983” substitute “section 33 of the Act of 1996”.
59 (1) Section 9 of the Housing Act 1988 (extended discretion of court in possession claims) is amended as follows.
(2) In subsection (5)—
(a) in paragraph (a), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “matrimonial home rights under Part IV of the Family Law Act 1996”, and
(b) for “those rights of occupation” substitute “those matrimonial home rights”.
(3) After subsection (5) insert—
“(5A) In any case where—
(a) at a time when proceedings are brought for possession of a dwelling-house let on an assured tenancy—
(i) an order is in force under section 35 of the Family Law Act 1996 conferring rights on the former spouse of the tenant, or
(ii) an order is in force under section 36 of that Act conferring rights on a cohabitant or former cohabitant (within the meaning of that Act) of the tenant,
(b) that cohabitant, former cohabitant or former spouse is then in occupation of the dwelling-house, and
(c) the assured tenancy is terminated as a result of those proceedings,
the cohabitant, former cohabitant or former spouse shall have the same rights in relation to, or in connection with, any such adjournment as is referred to in subsection (1) above or any such stay, suspension or postponement as is referred to in subsection (2) above as he or she would have if the rights conferred by the order referred to in paragraph (a) above were not affected by the termination of the tenancy.”
60 (1) In section 8(4) of the Children Act 1989 (meaning of “family proceedings” for purposes of that Act), omit paragraphs (c) and (f) and after paragraph (g) insert—
“(h) the Family Law Act 1996.”
(2) In Schedule 11 to that Act, in paragraph 6(a) (amendment of the [1978 c. 22.] Domestic Proceedings and Magistrates' Courts Act 1978), for “sections 16(5)(c) and” substitute “section”.
61 In section 58 of the Courts and Legal Services Act 1990 (conditional fee agreements) in subsection (10), omit paragraphs (b) and (e) and immediately before the “or” following paragraph (g) insert—
“(gg) Part IV of the Family Law Act 1996”.
Family Law Act 1996