Family Law Act 1996

• Citation: 1996 c. 27
• Sections: 224

Section 1 The general principles underlying section 22 .

The court and any person, in exercising functions under or in consequence of section 22 , shall have regard to the following general principles—

(a) that the institution of marriage is to be supported;

(b) 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;

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 2 Divorce and separation.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 3 Circumstances in which orders are made.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 4 Conversion of separation order into divorce order.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 5 Marital breakdown.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 6 Statement of marital breakdown.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 7 Period for reflection and consideration.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 8 Attendance at information meetings.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 9 Arrangements for the future.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 10 Hardship: orders preventing divorce.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 11 Welfare of children.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 12 Rules about procedure

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 13 Directions with respect to mediation.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 14 Adjournments.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 15 Financial arrangements.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 18 Grounds for financial provision orders in magistrates’ courts.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 19 Jurisdiction in relation to divorce and separation.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 20 Time when proceedings for divorce or separation begin.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 21 Intestacy: effect of separation.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 22 Funding for marriage support services.

(1) The Secretary of State may, with the approval of the Treasury, make grants in connection with—

(a) the provision of marriage support services;

(b) research into the causes of marital breakdown;

(c) research into ways of preventing marital breakdown.

(2) Any grant under this section may be made subject to such conditions as the Secretary of State considers appropriate.

(3) In exercising his power to make grants in connection with the provision of marriage support services, the Secretary of State is to have regard, in particular, to the desirability of services of that kind being available when they are first needed.

Section 23 Provision of marriage counselling.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 24 Interpretation of Part II etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 25 Connected proceedings.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 26 Legal aid for mediation in family matters.

(1) In the Legal Aid Act 1988 insert, after section 13—

Mediation

Scope of this Part.

(13A)

(1) This Part applies to mediation in disputes relating to family matters.

(2) “ Family matters ” means matters which are governed by English law and in relation to which any question has arisen, or may arise—

(a) under any provision of—

(i) the 1973 Act;

(ii) the Domestic Proceedings and Magistrates’ Courts Act 1978;

(iii) Parts I to V of the Children Act 1989;

(iv) Parts II and IV of the Family Law Act 1996; or

(v) any other enactment prescribed;

(b) under any prescribed jurisdiction of a prescribed court or tribunal; or

(c) under any prescribed rule of law.

(3) Regulations may restrict this Part to mediation in disputes of any prescribed description.

(4) The power to—

(a) make regulations under subsection (2), or

(b) revoke any regulations made under subsection (3),

is exercisable only with the consent of the Treasury.

(2) In section 2 of the 1988 Act, after subsection (3), insert—

(3A) “ Mediation ” means mediation to which Part IIIA of this Act applies; and includes steps taken by a mediator in any case—

(a) in determining whether to embark on mediation;

(b) in preparing for mediation; and

(c) in making any assessment under that Part.

(3) In section 43 of the 1988 Act, after the definition of “legal representative” insert—

“ mediator ” means a person with whom the Board contracts for the provision of mediation by any person.

Section 27 Provision and availability of mediation.

After section 13A of the 1988 Act, insert—

Provision and availability of mediation.

(13B)

(1) The Board may secure the provision of mediation under this Part.

(2) If mediation is provided under this Part, it is to be available to any person whose financial resources are such as, under regulations, make him eligible for mediation.

(3) A person is not to be granted mediation in relation to any dispute unless mediation appears to the mediator suitable to the dispute and the parties and all the circumstances.

(4) A grant of mediation under this Part may be amended, withdrawn or revoked.

(5) The power conferred by subsection (1) shall be exercised in accordance with any directions given by the Lord Chancellor.

(6) Any contract entered into by the Board for the provision of mediation under this Part must require the mediator to comply with a code of practice.

(7) The code must require the mediator to have arrangements designed to ensure—

(a) that parties participate in mediation only if willing and not influenced by fear of violence or other harm;

(b) that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;

(c) that the possibility of reconciliation is kept under review throughout mediation; and

(d) that each party is informed about the availability of independent legal advice.

(8) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider—

(a) the welfare, wishes and feelings of each child; and

(b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.

(9) A contract entered into by the Board for the provision of mediation under this Part must also include such other provision as the Lord Chancellor may direct the Board to include.

(10) Directions under this section may apply generally to contracts, or to contracts of any description, entered into by the Board, but shall not be made with respect to any particular contract.

Section 28 Payment for mediation.

(1) After section 13B of the 1988 Act, insert—

Payment for mediation under this Part.

(13C)

(1) Except as provided by this section, the legally assisted person is not to be required to pay for mediation provided under this Part.

(2) Subsection (3) applies if the financial resources of a legally assisted person are such as, under regulations, make him liable to make a contribution.

(3) The legally assisted person is to pay to the Board in respect of the costs of providing the mediation, a contribution of such amount as is determined or fixed by or under the regulations.

(4) If the total contribution made by a person in respect of any mediation exceeds the Board’s liability on his account, the excess shall be repaid to him.

(5) Regulations may provide that, where—

(a) mediation under this Part is made available to a legally assisted person, and

(b) property is recovered or preserved for the legally assisted person as a result of the mediation,

a sum equal to the Board’s liability on the legally assisted person’s account is, except so far as the regulations otherwise provide, to be a first charge on the property in favour of the Board.

(6) Regulations under subsection (5) may, in particular, make provision—

(a) as to circumstances in which property is to be taken to have been, or not to have been, recovered or preserved; and

(b) as to circumstances in which the recovery or preservation of property is to be taken to be, or not to be, the result of any mediation.

(7) For the purposes of subsection (5), the nature of the property and where it is situated is immaterial.

(8) The power to make regulations under section 34(2)(f) and (8) is exercisable in relation to any charge created under subsection (5) as it is exercisable in relation to the charge created by section 16.

(9) For the purposes of subsections (4) and (5), the Board’s liability on any person’s account in relation to any mediation is the aggregate amount of—

(a) the sums paid or payable by the Board on his account for the mediation, determined in accordance with subsection (10);

(b) any sums paid or payable in respect of its net liability on his account, determined in accordance with subsection (11) and the regulations—

(i) in respect of any proceedings, and

(ii) for any advice or assistance under Part III in connection with the proceedings or any matter to which the proceedings relate,

so far as the proceedings relate to any matter to which the mediation relates; and

(c) any sums paid or payable in respect of its net liability on his account, determined in accordance with the regulations, for any other advice or assistance under Part III in connection with the mediation or any matter to which the mediation relates.

(10) For the purposes of subsection (9)(a), the sums paid or payable by the Board on any person’s account for any mediation are—

(a) sums determined under the contract between the Board and the mediator as payable by the Board on that person’s account for the mediation; or

(b) if the contract does not differentiate between such sums and sums payable on any other person’s account or for any other mediation, such part of the remuneration payable under the contract as may be specified in writing by the Board.

(11) For the purposes of subsection (9)(b), the Board’s net liability on any person’s account in relation to any proceedings is its net liability on his account under section 16(9)(a) and (b) in relation to the proceedings.

(2) In section 16(9), after paragraph (b) insert

and

(c) if and to the extent that regulations so provide, any sums paid or payable in respect of the Board’s liability on the legally assisted person’s account in relation to any mediation in connection with any matter to which those proceedings relate.

(3) At the end of section 16, insert—

(11) For the purposes of subsection (9)(c) above, the Board’s liability on any person’s account in relation to any mediation is its liability on his account under section 13C(9)(a) and (c) above in relation to the mediation.

Section 29 Mediation and civil legal aid.

In section 15 of the 1988 Act, after subsection (3E) insert—

(3F) A person shall not be granted representation for the purposes of proceedings relating to family matters, unless he has attended a meeting with a mediator—

(a) to determine—

(i) whether mediation appears suitable to the dispute and the parties and all the circumstances, and

(ii) in particular, whether mediation could take place without either party being influenced by fear of violence or other harm; and

(b) if mediation does appear suitable, to help the person applying for representation to decide whether instead to apply for mediation.

(3G) Subsection (3F) does not apply—

(a) in relation to proceedings under—

(i) Part IV of the Family Law Act 1996;

(ii) section 37 of the Matrimonial Causes Act 1973;

(iii) Part IV or V of the Children Act 1989;

(b) in relation to proceedings of any other description that may be prescribed; or

(c) in such circumstances as may be prescribed.

(3H) So far as proceedings relate to family matters, the Board, in determining under subsection (3)(a) whether, in relation to the proceedings, it is reasonable that a person should be granted representation under this Part—

(a) must have regard to whether and to what extent recourse to mediation would be a suitable alternative to taking the proceedings; and

(b) must for that purpose have regard to the outcome of the meeting held under subsection (3F) and to any assessment made for the purposes of section 13B(3).

Section 30 Rights concerning home where one spouse or civil partner has no estate, etc.

(1) This section applies if—

(a) one spouse or civil partner (“A”) is entitled to occupy a dwelling-house by virtue of—

(i) a beneficial estate or interest or contract; or

(ii) any enactment giving A the right to remain in occupation; and

(b) the other spouse or civil partner (“B”) is not so entitled.

(2) Subject to the provisions of this Part, B has the following rights ( “home rights” )—

(a) if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by A except with the leave of the court given by an order under section 33;

(b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.

(3) If B 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 B in or towards satisfaction of any liability of A 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 A .

(4) B's occupation by virtue of this section—

(a) 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 A as A's residence, and

(b) if B occupies the dwelling-house as B's only or principal home, is to be treated, for the purposes of the Housing Act 1985 , Part I of the Housing Act 1988 , Chapter 1 of Part 5 of the Housing Act 1996 , the Prevention of Social Housing Fraud Act 2013 and the Renting Homes (Wales) Act 2016 (anaw 1) , as occupation by A as A's only or principal home.

(5) If B )—

(a) is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, and

(b) makes any payment in or towards satisfaction of any liability of A in respect of mortgage payments affecting the dwelling-house,

the person to whom the payment is made may treat it as having been made by A , but the fact that that person has treated any such payment as having been so made does not affect any claim of B against A to an interest in the dwelling-house by virtue of the payment.

(6) If B is entitled under this section to occupy a dwelling-house or part of a dwelling-house by reason of an interest of A under a trust, all the provisions of subsections (3) to (5) apply in relation to the trustees as they apply in relation to A .

(7) This section does not apply to a dwelling-house which—

(a) in the case of spouses, has at no time been, and was at no time intended by them to be, a matrimonial home of theirs; and

(b) in the case of civil partners, has at no time been, and was at no time intended by them to be, a civil partnership home of theirs.

8 B’s home rights continue—

(a) only so long as the marriage or civil partnership subsists, except to the extent that an order under section 33(5) otherwise provides; and

(b) only so long as A 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.

(9) It is hereby declared that a person —

(a) who has an equitable interest in a dwelling-house or in its proceeds of sale, but

(b) is not a person 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,

is to be treated, only for the purpose of determining whether he has home rights , as not being entitled to occupy the dwelling-house by virtue of that interest.

Section 31 Effect of home rights as charge on dwelling-house.

(1) Subsections (2) and (3) apply if, at any time during a marriage or civil partnership, A is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest.

(2) B’s home rights are a charge on the estate or interest.

(3) 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—

(a) the date on which A acquires the estate or interest;

(b) the date of the marriage or of the formation of the civil partnership ; and

(c) 1st January 1968 (the commencement date of the Matrimonial Homes Act 1967).

(4) Subsections (5) and (6) apply if, at any time when B’s home rights are a charge on an interest of A under a trust, there are, apart from A or B , no persons, living or unborn, who are or could become beneficiaries under the trust.

(5) The rights are a charge also on the estate or interest of the trustees for A .

(6) 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.

(7) 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 A and B alone (whether or not the exercise of it requires the consent of another person).

(8) Even though B’s home rights are a charge on an estate or interest in the dwelling-house, those rights are brought to an end by—

(a) the death of A , or

(b) the termination (otherwise than by death) of the marriage or civil partnership ,

unless the court directs otherwise by an order made under section 33(5).

(9) If—

(a) B’s home rights are a charge on an estate or interest in the dwelling-house, and

(b) 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,

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 A or, as the case may be, under the trustees for A , by virtue of the surrender.

(10) If the title to the legal estate by virtue of which A is entitled to occupy a dwelling-house (including any legal estate held by trustees for A ) is registered under the Land Registration Act 2002 or any enactment replaced by that Act—

(a) 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

(b) B’s home rights are not to be capable of falling within paragraph 2 of Schedule 1 or 3 to that Act.

(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) If—

(a) B’s home rights are a charge on the estate of A or of trustees of A, and

(b) that estate is the subject of a mortgage,

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.

(13) 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.

Section 32 Further provisions relating to home rights.

Schedule 4 (provisions supplementary to sections 30 and 31) has effect.

Section 33 Occupation orders where applicant has estate or interest etc. or has home rights .

(1) If—

(a) a person ( “the person entitled”)—

(i) 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

(ii) has home rights in relation to a dwelling-house, and

(b) the dwelling-house—

(i) is or at any time has been the home of the person entitled and of another person with whom he is associated, or

(ii) was at any time intended by the person entitled and any such other person to be their home,

the person entitled may apply to the court for an order containing any of the provisions specified in subsections (3), (4) and (5).

(2) 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.

(2A) If a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) is terminated, no application under this section may be made by virtue of section 62(3)(eza) by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.

(3) An order under this section may—

(a) enforce the applicant’s entitlement to remain in occupation as against the other person ( “the respondent”);

(b) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(c) regulate the occupation of the dwelling-house by either or both parties;

(d) 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;

(e) if the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse or civil partner , restrict or terminate those rights;

(f) require the respondent to leave the dwelling-house or part of the dwelling-house; or

(g) exclude the respondent from a defined area in which the dwelling-house is included.

(4) An order under this section may declare that the applicant is entitled as mentioned in subsection (1)(a)(i) or has home rights .

(5) If the applicant has home rights and the respondent is the other spouse or civil partner , an order under this section made during the marriage or civil partnership may provide that those rights are not brought to an end by—

(a) the death of the other spouse or civil partner ; or

(b) the termination (otherwise than by death) of the marriage or civil partnership .

(6) 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—

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) 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

(d) the conduct of the parties in relation to each other and otherwise.

(7) 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—

(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and

(b) 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.

(8) 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.

(9) An order under this section—

(a) may not be made after the death of either of the parties mentioned in subsection (1); and

(b) except in the case of an order made by virtue of subsection (5)(a), ceases to have effect on the death of either party.

(10) 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.

Section 34 Effect of order under s. 33 where rights are charge on dwelling-house.

(1) If B’s home rights are a charge on the estate or interest of A or of trustees for A —

(a) an order under section 33 against A has, except so far as a contrary intention appears, the same effect against persons deriving title under A or under the trustees and affected by the charge, and

(b) sections 33(1), (3), (4) and (10) and 30(3) to (6) apply in relation to any person deriving title under A or under the trustees and affected by the charge as they apply in relation to A .

(2) 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.

Section 35 One former spouse or former civil partner with no existing right to occupy.

(1) This section applies if—

(a) one former spouse or former civil partner 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;

(b) the other former spouse or former civil partner is not so entitled; and

(c) the dwelling-house—

(i) in the case of former spouses, was at any time their matrimonial home or was at any time intended by them to be their matrimonial home, or

(ii) in the case of former civil partners, was at any time their civil partnership home or was at any time intended by them to be their civil partnership home.

(2) The former spouse or former civil partner not so entitled may apply to the court for an order under this section against the other former spouse or former civil partner ( “the respondent”).

(3) If the applicant is in occupation, an order under this section must contain provision—

(a) 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

(b) prohibiting the respondent from evicting or excluding the applicant during that period.

(4) If the applicant is not in occupation, an order under this section must contain provision—

(a) giving the applicant the right to enter into and occupy the dwelling-house for the period specified in the order; and

(b) requiring the respondent to permit the exercise of that right.

(5) An order under this section may also—

(a) regulate the occupation of the dwelling-house by either or both of the parties;

(b) prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;

(c) require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d) exclude the respondent from a defined area in which the dwelling-house is included.

(6) 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—

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) 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;

(d) the conduct of the parties in relation to each other and otherwise;

(e) the length of time that has elapsed since the parties ceased to live together;

(f) the length of time that has elapsed since the marriage or civil partnership was dissolved or annulled; and

(g) the existence of any pending proceedings between the parties—

(i) for an order under section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc.);

(ia) for a property adjustment order under Part 2 of Schedule 5 to the Civil Partnership Act 2004;

(ii) 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

(iii) relating to the legal or beneficial ownership of the dwelling-house.

(7) 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).

(8) 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—

(a) the respondent or any relevant child is likely to suffer significant harm if the provision is included in the order; and

(b) 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.

(9) An order under this section—

(a) may not be made after the death of either of the former spouses or former civil partners ; and

(b) ceases to have effect on the death of either of them.

(10) 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.

(11) A former spouse or former civil partner 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.

(12) Subsection (11) does not prejudice any right of such a former spouse or former civil partner to apply for an order under section 33.

(13) So long as an order under this section remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—

(a) as if he were B (the person entitled to occupy the dwelling-house by virtue of that section); and

(b) as if the respondent were A (the person entitled as mentioned in subsection (1)(a) of that section).

Section 36 One cohabitant or former cohabitant with no existing right to occupy.

(1) This section applies if—

(a) 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;

(b) the other cohabitant or former cohabitant is not so entitled; and

(c) that dwelling-house is the home in which they cohabit or a home in which they at any time cohabited or intended to cohabit .

(2) 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”).

(3) If the applicant is in occupation, an order under this section must contain provision—

(a) 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

(b) prohibiting the respondent from evicting or excluding the applicant during that period.

(4) If the applicant is not in occupation, an order under this section must contain provision—

(a) giving the applicant the right to enter into and occupy the dwelling-house for the period specified in the order; and

(b) requiring the respondent to permit the exercise of that right.

(5) An order under this section may also—

(a) regulate the occupation of the dwelling-house by either or both of the parties;

(b) prohibit, suspend or restrict the exercise by the respondent of his right to occupy the dwelling-house;

(c) require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d) exclude the respondent from a defined area in which the dwelling-house is included.

(6) 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—

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) 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;

(d) the conduct of the parties in relation to each other and otherwise;

(e) the nature of the parties’ relationship and in particular the level of commitment involved in it ;

(f) the length of time during which they have cohabited ;

(g) 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;

(h) the length of time that has elapsed since the parties ceased to live together; and

(i) the existence of any pending proceedings between the parties—

(i) 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

(ii) relating to the legal or beneficial ownership of the dwelling-house.

(7) 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—

(a) the matters mentioned in subsection (6)(a) to (d); and

(b) the questions mentioned in subsection (8).

(8) The questions are—

(a) 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

(b) 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.

(9) An order under this section—

(a) may not be made after the death of either of the parties; and

(b) ceases to have effect on the death of either of them.

(10) 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.

(11) 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.

(12) Subsection (11) does not prejudice any right of such a person to apply for an order under section 33.

(13) So long as the order remains in force, subsections (3) to (6) of section 30 apply in relation to the applicant—

(a) as if he were B (the person entitled to occupy the dwelling-house by virtue of that section); and

(b) as if the respondent were A (the person entitled as mentioned in subsection (1)(a) of that section).

Section 37 Neither spouse or civil partner entitled to occupy.

(1) This section applies if—

(a) one spouse or former spouse and the other spouse or former spouse occupy a dwelling-house which is or was the matrimonial home; but

(b) neither of them is entitled to remain in occupation—

(i) by virtue of a beneficial estate or interest or contract; or

(ii) by virtue of any enactment giving him the right to remain in occupation.

(1A) This section also applies if—

(a) one civil partner or former civil partner and the other civil partner or former civil partner occupy a dwelling-house which is or was the civil partnership home; but

(b) neither of them is entitled to remain in occupation—

(i) by virtue of a beneficial estate or interest or contract; or

(ii) by virtue of any enactment giving him the right to remain in occupation.

(2) Either of the parties may apply to the court for an order against the other under this section.

(3) An order under this section may—

(a) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(b) regulate the occupation of the dwelling-house by either or both of the parties ;

(c) require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d) exclude the respondent from a defined area in which the dwelling-house is included.

(4) 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.

(5) 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.

Section 38 Neither cohabitant or former cohabitant entitled to occupy.

(1) This section applies if—

(a) one cohabitant or former cohabitant and the other cohabitant or former cohabitant occupy a dwelling-house which is the home in which they cohabit or cohabited ; but

(b) neither of them is entitled to remain in occupation—

(i) by virtue of a beneficial estate or interest or contract; or

(ii) by virtue of any enactment giving him the right to remain in occupation.

(2) Either of the parties may apply to the court for an order against the other under this section.

(3) An order under this section may—

(a) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(b) regulate the occupation of the dwelling-house by either or both of the parties;

(c) require the respondent to leave the dwelling-house or part of the dwelling-house; or

(d) exclude the respondent from a defined area in which the dwelling-house is included.

(4) 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—

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) 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;

(d) the conduct of the parties in relation to each other and otherwise; and

(e) the questions mentioned in subsection (5).

(5) The questions are—

(a) 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

(b) 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.

(6) 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.

Section 39 Supplementary provisions.

(1) In this Part an “ occupation order ” means an order under section 33, 35, 36, 37 or 38.

(2) An application for an occupation order may be made in other family proceedings or without any other family proceedings being instituted.

(3) If—

(a) an application for an occupation order is made under section 33, 35, 36, 37 or 38, and

(b) 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 court may make an order under that other section.

(4) 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).

Section 40 Additional provisions that may be included in certain occupation orders.

(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.

Section 41 Additional considerations if parties are cohabitants or former cohabitants.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 42 Non-molestation orders.

(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 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.

(4A) A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b).

(4B) In this Part “ the applicant ”, in relation to a non-molestation order, includes (where the context permits) the person for whose benefit such an order would be or is made in exercise of the power conferred by subsection (2)(b).

(4ZA) If a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) is terminated, no application under this section may be made by virtue of section 62(3)(eza) 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 . . . ; 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.

Section 42A Offence of breaching non-molestation order

(1) A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.

(2) In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.

(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.

(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.

(5) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court , or a fine not exceeding the statutory maximum, or both.

(6) A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in such proceedings.

“ Enactment ” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978 (c. 30).

Section 43 Leave of court required for applications by children under sixteen.

(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.

Section 44 Evidence of agreement to marry or form a civil partnership .

(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.

(3) Subject to subsection (4), the court shall not make an order under section 33 or 42 by virtue of section 62(3)(eza) unless there is produced to it evidence in writing of the existence of the civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004).

(4) Subsection (3) does not apply if the court is satisfied that the civil partnership agreement was evidenced by—

(a) a gift by one party to the agreement to the other as a token of the agreement, 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.

Section 45 Ex parte orders.

(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 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).

Section 46 Undertakings.

(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) instead of making an occupation order in any case where apart from this section a power of arrest would be attached to the order.

(3A) The court shall not accept an undertaking under subsection (1) instead of making a non-molestation order in any case where it appears to the court that—

(a) the respondent has used or threatened violence against the applicant or a relevant child; and

(b) for the protection of the applicant or child it is necessary to make a non-molestation order so that any breach may be punishable under section 42A.

(4) An undertaking given to a court under subsection (1) is enforceable as if the court had made an occupation order or a non-molestation order in terms corresponding to those of the undertaking .

(5) This section has effect without prejudice to the powers of the High Court and the family court apart from this section.

Section 47 Arrest for breach of order.

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) If—

(a) the court makes an occupation 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 occupation 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 an occupation 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 occupation 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—

(a) has made a non-molestation order, or

(b) has made an occupation order but has not attached a power of arrest under subsection (2) or (3) to any provision of the order, or 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 Magistrates’ Courts Act 1980) has effect in relation to the powers of the High Court and the family court to remand a person by virtue of this section.

(12) If a person remanded under this section is granted bail ..., 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.

Section 48 Remand for medical examination and report.

(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 disorder within the meaning of the Mental Health Act 1983 , the relevant judicial authority has the same power to make an order under section 35 of that Act (remand for report on accused’s mental condition) as the Crown Court has under that section in the case of an accused person within the meaning of that section.

Section 49 Variation and discharge of orders.

(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 B’s home rights are, under section 31, are a charge on the estate or interest of A or of trustees for A , an order under section 33 against A may also be varied or discharged by the court on an application by any person deriving title under A 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 . . . , 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).

Section 50 Power of magistrates’ court to suspend execution of committal order.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 51 Power of magistrates’ court to order hospital admission or guardianship.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .