Family Law Act 1996 (c. 27)

(The document as of February, 2008)

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28 Payment for mediation

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

" 13C Payment for mediation under this Part

(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. "

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 [1973 c. 18.] Matrimonial Causes Act 1973;

(iii) Part IV or V of the [1989 c. 41.] Children Act 1989;

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

(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). "

Part IV Family Homes and Domestic Violence

Rights to occupy matrimonial home

30 Rights concerning matrimonial home where one spouse has no estate, etc

(1) This section applies if--

(a) one spouse is entitled to occupy a dwelling-house by virtue of--

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

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

(b) the other spouse is not so entitled.

(2) Subject to the provisions of this Part, the spouse not so entitled has the following rights ("matrimonial home rights")--

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

(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 a spouse is entitled under this section to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by that spouse in or towards satisfaction of any liability of the other spouse in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under section 40, as good as if made or done by the other spouse.

(4) A spouse's occupation by virtue of this section--

(a) is to be treated, for the purposes of the [1976 c. 80.] Rent (Agriculture) Act 1976 and the [1977 c. 42.] Rent Act 1977 (other than Part V and sections 103 to 106 of that Act), as occupation by the other spouse as the other spouse's residence, and

(b) if the spouse occupies the dwelling-house as that spouse's only or principal home, is to be treated, for the purposes of the [1985 c. 68.] Housing Act 1985 and Part I of the [1988 c. 50.] Housing Act 1988, as occupation by the other spouse as the other spouse's only or principal home.

(5) If a spouse ("the first spouse")--

(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 the other spouse ("the second spouse") 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 the second spouse, but the fact that that person has treated any such payment as having been so made does not affect any claim of the first spouse against the second spouse to an interest in the dwelling-house by virtue of the payment.

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

(7) This section does not apply to a dwelling-house which has at no time been, and which was at no time intended by the spouses to be, a matrimonial home of theirs.

(8) A spouse's matrimonial home rights continue--

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

(b) only so long as the other spouse is entitled as mentioned in subsection (1) to occupy the dwelling-house, except where provision is made by section 31 for those rights to be a charge on an estate or interest in the dwelling-house.

(9) It is hereby declared that a spouse--

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

(b) is not a spouse in whom there is vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-house,

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

31 Effect of matrimonial home rights as charge on dwelling-house

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

(2) The other spouse's matrimonial 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 the spouse so entitled acquires the estate or interest;

(b) the date of the marriage; and

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

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

(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 the spouses alone (whether or not the exercise of it requires the consent of another person).

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

(a) the death of the other spouse, or

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

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

(9) If--

(a) a spouse's matrimonial 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 the other spouse or, as the case may be, under the trustees for the other spouse, by virtue of the surrender.

(10) If the title to the legal estate by virtue of which a spouse is entitled to occupy a dwelling-house (including any legal estate held by trustees for that spouse) is registered under the [1925 c. 21.] Land Registration Act 1925 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) a spouse's matrimonial home rights are not an overriding interest within the meaning of that Act affecting the dwelling-house even though the spouse is in actual occupation of the dwelling-house.

(11) A spouse's matrimonial home rights (whether or not constituting a charge) do not entitle that spouse to lodge a caution under section 54 of the Land Registration Act 1925.

(12) If--

(a) a spouse's matrimonial home rights are a charge on the estate of the other spouse or of trustees of the other spouse, 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 [1972 c. 61.] Land Charges Act 1972, the charge is, for the purposes of section 94 of the [1925 c. 20.] 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.

32 Further provisions relating to matrimonial home rights

Schedule 4 re-enacts with consequential amendments and minor modifications provisions of the [1983 c. 19.] Matrimonial Homes Act 1983.

Occupation orders

33 Occupation orders where applicant has estate or interest etc. or has matrimonial 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 matrimonial 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.

(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;

(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 matrimonial home rights in relation to the dwelling-house and the applicant is the other spouse, 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 matrimonial home rights.

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

(a) the death of the other spouse; or

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

(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.

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

(1) 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--

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

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

(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.

35 One former spouse with no existing right to occupy

(1) This section applies if--

(a) one former spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving him the right to remain in occupation;

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

(c) the dwelling-house was at any time their matrimonial home or was at any time intended by them to be their matrimonial home.

(2) The former spouse not so entitled may apply to the court for an order under this section against the other former spouse ("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;

(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 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 [1973 c. 18.] Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc.);

(ii) for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the [1989 c. 41.] 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; 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 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 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 the spouse entitled to occupy the dwelling-house by virtue of that section; and

(b) as if the respondent were the other spouse.

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 live together as husband and wife or a home in which they at any time so lived together or intended so to live together.

(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;

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

(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;

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

(e) the nature of the parties' relationship;

(f) the length of time during which they have lived together as husband and wife;

(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 [1989 c. 41.] 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 a spouse entitled to occupy the dwelling-house by virtue of that section; and

(b) as if the respondent were the other spouse.

37 Neither spouse 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.

(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 spouses;

(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.

38 Neither cohabitant or former cohabitant entitled to occupy

(1) This section applies if--

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