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PART IV continued
(1) The court may on, or at any time after, making an occupation order under section 33, 35 or 36—
(a) impose on either party obligations as to—
(i) the repair and maintenance of the dwelling-house; or
(ii) the discharge of rent, mortgage payments or other outgoings affecting the dwelling-house;
(b) 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;
(c) grant either party possession or use of furniture or other contents of the dwelling-house;
(d) order either party to take reasonable care of any furniture or other contents of the dwelling-house;
(e) order either party to take reasonable steps to keep the dwelling-house and any furniture or other contents secure.
(2) 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—
(a) the financial needs and financial resources of the parties; and
(b) 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.
(3) An order under this section ceases to have effect when the occupation order to which it relates ceases to have effect.
(1) This section applies if the parties are cohabitants or former cohabitants.
(2) 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.
(1) In this Part a“non-molestation order” means an order containing either or both of the following provisions—
(a) provision prohibiting a person (“the respondent”) from molesting another person who is associated with the respondent;
(b) provision prohibiting the respondent from molesting a relevant child.
(2) The court may make a non-molestation order—
(a) 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
(b) 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.
(3) In subsection (2)“family proceedings” includes proceedings in which the court has made an emergency protection order under section 44 of the [1989 c. 41.] Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act).
(4) 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.
(5) 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—
(a) of the applicant or, in a case falling within subsection (2)(b), the person for whose benefit the order would be made; and
(b) of any relevant child.
(6) A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.
(7) A non-molestation order may be made for a specified period or until further order.
(8) A non-molestation order which is made in other family proceedings ceases to have effect if those proceedings are withdrawn or dismissed.
(1) 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.
(2) 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.
(1) 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.
(2) Subsection (1) does not apply if the court is satisfied that the agreement to marry was evidenced by—
(a) the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or
(b) a ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.
(1) 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.
(2) In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including—
(a) 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;
(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
(c) 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—
(i) where the court is a magistrates' court, in effecting service of proceedings; or
(ii) in any other case, in effecting substituted service.
(3) 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.
(4) If, at a full hearing, the court makes an occupation order (“the full order”), then—
(a) 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
(b) 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.
(5) In this section—
“full hearing” means a hearing of which notice has been given to all the parties in accordance with rules of court;
“initial order” means an occupation order made by virtue of subsection (1); and
“relevant section” means section 33(10), 35(10), 36(10), 37(5) or 38(6).
(1) 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.
(2) No power of arrest may be attached to any undertaking given under subsection (1).
(3) 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.
(4) An undertaking given to a court under subsection (1) is enforceable as if it were an order of the court.
(5) This section has effect without prejudice to the powers of the High Court and the county court apart from this section.
(1) In this section“a relevant order” means an occupation order or a non-molestation order.
(2) If—
(a) the court makes a relevant order; and
(b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child,
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.
(3) 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—
(a) that the respondent has used or threatened violence against the applicant or a relevant child; and
(b) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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)—
(a) he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest; and
(b) if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him.
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.
(8) If the court has made a relevant order but—
(a) has not attached a power of arrest under subsection (2) or (3) to any provisions of the order, or
(b) has attached that power only to certain provisions of the order,
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.
(9) The relevant judicial authority shall not issue a warrant on an application under subsection (8) unless—
(a) the application is substantiated on oath; and
(b) the relevant judicial authority has reasonable grounds for believing that the respondent has failed to comply with the order.
(10) 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.
(11) Schedule 5 (which makes provision corresponding to that applying in magistrates' courts in civil cases under sections 128 and 129 of the [1980 c. 43.] 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.
(12) 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.
(1) 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.
(2) 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.
(3) If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time.
(4) If there is reason to suspect that a person who has been arrested—
(a) under section 47(6), or
(b) under a warrant issued on an application made under section 47(8),
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 [1983 c. 20.] 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.
(1) An occupation order or non-molestation order may be varied or discharged by the court on an application by—
(a) the respondent, or
(b) the person on whose application the order was made.
(2) 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.
(3) 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.
(4) 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).
(1) If, under section 63(3) of the [1980 c. 43.] 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.
(2) In subsection (1)“a relevant requirement” means—
(a) an occupation order or non-molestation order;
(b) an exclusion requirement included by virtue of section 38A of the [1989 c. 41.] Children Act 1989 in an interim care order made under section 38 of that Act; or
(c) 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.
(1) A magistrates' court has the same power to make a hospital order or guardianship order under section 37 of the [1983 c. 20.] 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.
(2) 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.
(1) 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.
(2) Subsection (1) applies whether or not the mortgagee is in possession.
(3) 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—
(a) any matrimonial home rights conferred by section 30, or
(b) any rights conferred by an order under section 35 or 36,
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.
(4) 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.
(5) In this section“connected person”, in relation to any person, means that person’s spouse, former spouse, cohabitant or former cohabitant.
(1) 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.
(2) 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).
(3) The circumstances are that—
(a) 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;
(b) he has applied to the court before the action is finally disposed of in that court; and
(c) the court sees no special reason against his being made a party to the action and is satisfied—
(i) 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
(ii) that the expectation of it should be considered under section 36 of the [1970 c. 31.] Administration of Justice Act 1970.
(4) In this section“connected person” has the same meaning as in section 54.
(1) 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—
(a) 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
(b) in the case of registered land, a subsisting registration of—
(i) a notice under section 31(10);
(ii) a notice under section 2(8) of the [1983 c. 19.] Matrimonial Homes Act 1983; or
(iii) a notice or caution under section 2(7) of the [1967 c. 75.] Matrimonial Homes Act 1967.
(2) If the person on whose behalf—
(a) the land charge is registered, or
(b) the notice or caution is entered,
is not a party to the action, the mortgagee must serve notice of the action on him.
(3) If—
(a) 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),
(b) a certificate of the result of the search has been issued, and
(c) the action is commenced within the priority period,
the relevant time is the date of the certificate.
(4) In any other case the relevant time is the time when the action is commenced.
(5) The priority period is, for both registered and unregistered land, the period for which, in accordance with section 11(5) and (6) of the [1972 c. 61.] Land Charges Act 1972, a certificate on an official search operates in favour of a purchaser.
(1) For the purposes of this Part“the court” means the High Court, a county court or a magistrates' court.
(2) 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.
(3) The Lord Chancellor may by order specify proceedings under this Part which may only be commenced in—
(a) a specified level of court;
(b) a court which falls within a specified class of court; or
(c) a particular court determined in accordance with, or specified in, the order.
(4) The Lord Chancellor may by order specify circumstances in which specified proceedings under this Part may only be commenced in—
(a) a specified level of court;
(b) a court which falls within a specified class of court; or
(c) a particular court determined in accordance with, or specified in, the order.
(5) 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) a specified level of court;
(b) a court which falls within a specified class of court; or
(c) a particular court determined in accordance with, or specified in, the order.
(6) 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.
(7) 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 [1984 c. 42.] 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.
(8) For the purposes of subsections (3), (4) and (5), there are three levels of court—
(a) the High Court;
(b) any county court; and
(c) any magistrates' court.
(9) 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.
(10) 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.
(11) 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.
(1) 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.
(2) 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.
(3) The powers of a magistrates' court under section 63(2) of the [1980 c. 43.] Magistrates' Courts Act 1980 to suspend or rescind orders shall not apply in relation to any order made under this Part.
(1) 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.
(2) 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.
(3) Rules made under this section may prescribe—
(a) conditions to be satisfied before a representative may make an application to the court on behalf of another; and
(b) 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.
(4) 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.
(5) Any such rules may be replaced by further rules made under this section.
(1) An appeal shall lie to the High Court against—
(a) the making by a magistrates' court of any order under this Part, or
(b) any refusal by a magistrates' court to make such an order,
but no appeal shall lie against any exercise by a magistrates' court of the power conferred by section 59(2).
(2) 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.
(3) 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.
(4) 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—
(a) of the enforcement of the order, and
(b) of any power to vary, revive or discharge orders,
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.
(5) 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).
(6) 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.
(1) For the purposes of this Part—
(a) “cohabitants” are a man and a woman who, although not married to each other, are living together as husband and wife; and
(b) “former cohabitants” is to be read accordingly, but does not include cohabitants who have subsequently married each other.
(2) In this Part,“relevant child”, in relation to any proceedings under this Part, means—
(a) any child who is living with or might reasonably be expected to live with either party to the proceedings;
(b) any child in relation to whom an order under the [1976 c. 36.] Adoption Act 1976 or the [1989 c. 41.] Children Act 1989 is in question in the proceedings; and
(c) any other child whose interests the court considers relevant.
(3) For the purposes of this Part, a person is associated with another person if—
(a) they are or have been married to each other;
(b) they are cohabitants or former cohabitants;
(c) 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;
(d) they are relatives;
(e) they have agreed to marry one another (whether or not that agreement has been terminated);
(f) in relation to any child, they are both persons falling within subsection (4); or
(g) they are parties to the same family proceedings (other than proceedings under this Part).
(4) A person falls within this subsection in relation to a child if—
(a) he is a parent of the child; or
(b) he has or has had parental responsibility for the child.
(5) 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—
(a) one is a natural parent of the child or a parent of such a natural parent; and
(b) the other is the child or any person—
(i) who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or
(ii) with whom the child has at any time been placed for adoption.
(6) 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.
Family Law Act 1996