Family Law Act 1996 (c. 27)

(The document as of February, 2008)

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(a) may be exercised differently in favour of different children; and

(b) except in the case of the power conferred by subsection (3) above, may be exercised from time to time in favour of the same child; and

(c) in the case of the power conferred by that subsection, if it is exercised by the making of a financial provision order of any kind in favour of a child, shall include power to make, from time to time, further financial provision orders of that or any other kind in favour of that child.

(10) Where an order is made under subsection (1) above in favour of a party to the marriage on or after the granting of a decree of nullity of marriage, neither the order nor any settlement made in pursuance of the order takes effect unless the decree has been made absolute.

(11) Subsection (10) above does not affect the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel.

(12) Where the court--

(a) makes an order under this section ("the main order") for the payment of a lump sum; and

(b) directs--

(i) that payment of that sum or any part of it is to be deferred; or

(ii) that that sum or any part of it is to be paid by instalments,

it may, on or at any time after making the main order, make an order ("the order for interest") for the amount deferred or the instalments to carry interest at such rate as may be specified by the order for interest from such date, not earlier than the date of the main order, as may be so specified, until the date when payment of it is due.

(13) This section is to be read subject to any restrictions imposed by this Act. "

Property adjustment orders: divorce and separation

5 Insert, before section 24--

" 23A Property adjustment orders: divorce and separation

(1) On an application made under this section, the court may, at any time mentioned in section 22A(2) above, make one or more property adjustment orders.

(2) If the court makes, in favour of the same party to the marriage, more than one property adjustment order in relation to any marital proceedings, whether in the course of the proceedings or by reference to a divorce order or separation order made in the proceedings, each order must fall within a different paragraph of section 21(2) above.

(3) The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more property adjustment orders in relation to the marriage as it thinks fit.

(4) Subsection (3) above does not affect section 31 or 31A below.

(5) This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.

23B Restrictions affecting section 23A

(1) No property adjustment order may be made under section 23A above so as to take effect before the making of a divorce order or separation order in relation to the marriage unless the court is satisfied--

(a) that the circumstances of the case are exceptional; and

(b) that it would be just and reasonable for the order to be so made.

(2) The court may not make a property adjustment order under section 23A above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.

(3) No property adjustment order may be made under section 23A above by virtue of the making of a statement of marital breakdown if, by virtue of section 5(3) or 7(5) of the 1996 Act (lapse of divorce or separation process), it has ceased to be possible--

(a) for an application to be made by reference to that statement; or

(b) for an order to be made on such an application.

(4) No property adjustment order may be made under section 23A above after a divorce order has been made, or while a separation order is in force, except--

(a) in response to an application made before the divorce order or separation order was made; or

(b) on a subsequent application made with the leave of the court.

(5) In this section,"period for reflection and consideration" means the period fixed by section 7 of the 1996 Act. "

Property adjustment orders: nullity

6 For section 24, substitute--

" 24 Property adjustment orders: nullity of marriage

(1) On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more property adjustment orders in relation to the marriage.

(2) The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more property adjustment orders in relation to the marriage as it thinks fit.

(3) Subsection (2) above does not affect section 31 or 31A below.

(4) Where a property adjustment order is made under this section on or after the granting of a decree of nullity of marriage, neither the order nor any settlement made in pursuance of the order is to take effect unless the decree has been made absolute.

(5) That does not affect the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel.

(6) This section is to be read subject to any restrictions imposed by this Act. "

Period of secured and unsecured payments orders

7 (1) In section 28(1) (duration of a continuing financial provision order in favour of a party to a marriage), for paragraphs (a) and (b) substitute--

" (a) a term specified in the order which is to begin before the making of the order shall begin no earlier--

(i) where the order is made by virtue of section 22A(2)(a) or (b) above, unless sub-paragraph (ii) below applies, than the beginning of the day on which the statement of marital breakdown in question was received by the court;

(ii) where the order is made by virtue of section 22A(2)(b) above and the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, than the date of the making of that application;

(iii) where the order is made by virtue of section 22A(2)(c) above, than the date of the making of the application for the divorce order; or

(iv) in any other case, than the date of the making of the application on which the order is made;

(b) a term specified in a periodical payments order or secured periodical payments order shall be so defined as not to extend beyond--

(i) in the case of a periodical payments order, the death of the party by whom the payments are to be made; or

(ii) in either case, the death of the party in whose favour the order was made or the remarriage of that party following the making of a divorce order or decree of nullity. "

(2) In section 29 (duration of continuing financial provision order in favour of a child of the family) insert after subsection (1)--

" (1A) The term specified in a periodical payments order or secured periodical payments order made in favour of a child shall be such term as the court thinks fit.

(1B) If that term is to begin before the making of the order, it may do so no earlier than--

(a) in the case of an order made by virtue of section 22A(2)(a) or (b) above, except where paragraph (b) below applies, the beginning of the day on which the statement of marital breakdown in question was received by the court;

(b) in the case of an order made by virtue of section 22A(2)(b) above where the application for the divorce order was made following cancellation of an order preventing divorce under section 10 of the 1996 Act, the date of the making of that application;

(c) in the case of an order made by virtue of section 22A(2)(c) above, the date of the making of the application for the divorce order; or

(d) in any other case, the date of the making of the application on which the order is made. "

Variations etc. following reconciliations

8 Insert after section 31--

" 31A Variation etc. following reconciliations

(1) Where, at a time before the making of a divorce order--

(a) an order ("a paragraph (a) order") for the payment of a lump sum has been made under section 22A above in favour of a party,

(b) such an order has been made in favour of a child of the family but the payment has not yet been made, or

the court may, on an application made jointly by the parties to the marriage, vary or discharge the order.

(2) Where the court varies or discharges a paragraph (a) order, it may order the repayment of an amount equal to the whole or any part of the lump sum.

(3) Where the court varies or discharges a paragraph (c) order, it may (if the order has taken effect)--

(a) order any person to whom property was transferred in pursuance of the paragraph (c) order to transfer--

(i) the whole or any part of that property, or

(ii) the whole or any part of any property appearing to the court to represent that property,

in favour of a party to the marriage or a child of the family; or

(b) vary any settlement to which the order relates in favour of any person or extinguish or reduce any person's interest under that settlement.

(4) Where the court acts under subsection (3) it may make such supplemental provision (including a further property adjustment order or an order for the payment of a lump sum) as it thinks appropriate in consequence of any transfer, variation, extinguishment or reduction to be made under paragraph (a) or (b) of that subsection.

(5) Sections 24A and 30 above apply for the purposes of this section as they apply where the court makes a property adjustment order under section 23A or 24 above.

(6) The court shall not make an order under subsection (2), (3) or (4) above unless it appears to it that there has been a reconciliation between the parties to the marriage.

(7) The court shall also not make an order under subsection (3) or (4) above unless it appears to it that the order will not prejudice the interests of--

(a) any child of the family; or

(b) any person who has acquired any right or interest in consequence of the paragraph (c) order and is not a party to the marriage or a child of the family. "

Section 19(5).

SCHEDULE 3 Stay of proceedings

Introductory

1 Schedule 1 to the [1973 c. 45.] Domicile and Matrimonial Proceedings Act 1973 (which relates to the staying of matrimonial proceedings) is amended as follows.

Interpretation

2 In paragraph 1, for "The following five paragraphs" substitute "Paragraphs 2 to 6 below".

3 For paragraph 2 substitute--

" 2 (1) "Matrimonial proceedings" means--

(a) marital proceedings;

(b) proceedings for nullity of marriage;

(d) proceedings for a declaration as to the subsistence of such a marriage.

(2) "Marital proceedings" has the meaning given by section 20 of the Family Law Act 1996.

(3) "Divorce proceedings" means marital proceedings that are divorce proceedings by virtue of that section. "

4 Insert, after paragraph 4--

" 4A (1) "Statement of marital breakdown" has the same meaning as in the Family Law Act 1996.

(2) "Relevant statement" in relation to any marital proceedings, means--

(a) the statement of marital breakdown with which the proceedings commenced; or

(b) if the proceedings are for the conversion of a separation order into a divorce order under section 4 of the Family Law Act 1996, the statement of marital breakdown by reference to which the separation order was made. "

Duty to furnish particulars of concurrent proceedings

5 For paragraph 7 substitute--

" 7 (1) While marital proceedings are pending in the court with respect to a marriage, this paragraph applies--

(a) to the party or parties to the marriage who made the relevant statement; and

(b) in prescribed circumstances where the statement was made by only one party, to the other party.

(2) While matrimonial proceedings of any other kind are pending in the court with respect to a marriage and the trial or first trial in those proceedings has not begun, this paragraph applies--

(a) to the petitioner; and

(b) if the respondent has included a prayer for relief in his answer, to the respondent.

(3) A person to whom this paragraph applies must give prescribed information about any proceedings which--

(a) he knows to be continuing in another jurisdiction; and

(b) are in respect of the marriage or capable of affecting its validity or subsistence.

(4) The information must be given in such manner, to such persons and on such occasions as may be prescribed. "

Obligatory stays in divorce cases

6 (1) Paragraph 8 is amended as follows.

(2) For the words before paragraph (a) of sub-paragraph (1) substitute--

" (1) This paragraph applies where divorce proceedings are continuing in the court with respect to a marriage.

(2) Where it appears to the court, on the application of a party to the marriage-- " .

(3) In sub-paragraph (1), in the words after paragraph (d), for "proceedings" substitute "divorce proceedings".

(4) For sub-paragraph (2) substitute--

" (3) The effect of such an order is that, while it is in force--

(a) no application for a divorce order in relation to the marriage may be made either by reference to the relevant statement or by reference to any subsequent statement of marital breakdown; and

(b) if such an application has been made, no divorce order may be made on that application. "

Discretionary stays

7 (1) Paragraph 9 is amended as follows.

(2) For sub-paragraph (1), substitute--

" (1) Sub-paragraph (1A) below applies where--

(a) marital proceedings are continuing in the court; or

(b) matrimonial proceedings of any other kind are continuing in the court, if the trial or first trial in the proceedings has not begun.

(1A) The court may make an order staying the proceedings if it appears to the court--

(a) that proceedings in respect of the marriage, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and

(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings to which the order relates. "

(3) For sub-paragraph (3) substitute--

" (3) Where an application for a stay is pending under paragraph 8 above, the court shall not make an order under sub-paragraph (1A) staying marital proceedings in relation to the marriage. "

(4) In sub-paragraph 4, after "pending in the court," insert "other than marital proceedings,".

(5) After sub-paragraph (4), insert--

" (5) The effect of an order under sub-paragraph (1A) for a stay of marital proceedings is that, while it is in force--

(a) no application for a divorce order or separation order in relation to the marriage may be made either by reference to the relevant statement or by reference to any subsequent statement of marital breakdown; and

(b) if such an application has been made, no divorce order or separation order shall be made on that application. "

Discharge of orders

8 In paragraph 10, for sub-paragraph (2), substitute--

" (1A) Where the court discharges an order staying any proceedings, it may direct that the whole or a specified part of any period while the order has been in force--

(a) is not to count towards any period specified in section 5(3) or 7(9) of the Family Law Act 1996; or

(b) is to count towards any such period only for specified purposes.

(2) Where the court discharges an order under paragraph 8 above, it shall not again make such an order in relation to the marriage except in a case where the obligation to do so arises under that paragraph following receipt by the court of a statement of marital breakdown after the discharge of the order. "

Ancillary matters

9 (1) Paragraph 11 is amended as follows.

(2) For sub-paragraph (1) substitute--

" (1) Sub-paragraphs (2) and (3) below apply where a stay of marital proceedings or proceedings for nullity of marriage--

(a) has been imposed by reference to proceedings in a related jurisdiction for divorce, separation or nullity of marriage, and

(b) is in force.

(1A) In this paragraph--

"lump sum order", in relation to a stay, means an order--
(a)
under section 22A or 23, 31 or 31A of the [1973 c. 18.] Matrimonial Causes Act 1973 which is an order for the payment of a lump sum for the purposes of Part II of that Act, or
(b)
made in any equivalent circumstances under Schedule 1 to the [1989 c. 41.] Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule,

so far as it satisfies the condition mentioned in sub-paragraph (1C) below;
"the other proceedings", in relation to a stay, means the proceedings in another jurisdiction by reference to which the stay was imposed;
"relevant order", in relation to a stay, means--
(a)
any financial provision order (including an interim order), other than a lump sum order;
(b)
any order made in equivalent circumstances under Schedule 1 to the [1989 c. 41.] Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule;
(c)
any section 8 order under the Act of 1989; and
(d)
except for the purposes of sub-paragraph (3) below, any order restraining a person from removing a child out of England and Wales or out of the care of another person,

so far as it satisfies the condition mentioned in sub-paragraph (1C) below.

(1C) The condition is that the order is, or (apart from this paragraph) could be, made in connection with the proceedings to which the stay applies. "

(3) In sub-paragraph (2)--

(a) for "any proceedings are stayed" substitute "this paragraph applies in relation to a stay";

(b) in paragraph (a), and in the first place in paragraph (c), omit "in connection with the stayed proceedings"; and

(4) In sub-paragraph (3)--

(a) for "any proceedings are stayed" substitute "this paragraph applies in relation to a stay";

(b) in paragraph (a), for "made in connection with the stayed proceedings" substitute "already made";

(5) In sub-paragraph (3A), for the words before "any order made" substitute--

" Where a secured periodical payments order within the meaning of the [1973 c. 18.] Matrimonial Causes Act 1973--
(a)
has been made under section 22A(1)(b) or 23(1)(b) or (2)(b) of that Act, but
(b)
ceases to have effect by virtue of sub-paragraph (2) or (3) above, " .

(6) For sub-paragraph (4), substitute--

" (4) Nothing in sub-paragraphs (2) and (3) above affects any relevant order or lump sum order or any power to make such an order in so far as--

(a) where the stay applies to matrimonial proceedings other than marital proceedings, the order has been made or the power may be exercised following the receipt by the court of a statement of marital breakdown;

(b) where the stay is of marital proceedings, the order has been made or the power may be exercised in matrimonial proceedings of any other kind; or

(i) in matrimonial proceedings which are not marital proceedings, or

(ii) in marital proceedings in which an application has been made for a separation order. "

(7) In sub-paragraph (5)(c), for the words from "in connection" onwards substitute "where a stay no longer applies".

Section 32.

SCHEDULE 4 Provisions supplementary to sections 30 and 31

Interpretation

1 (1) In this Schedule--

(a) any reference to a solicitor includes a reference to a licensed conveyancer or a recognised body, and

(b) any reference to a person's solicitor includes a reference to a licensed conveyancer or recognised body acting for that person.

(2) In sub-paragraph (1)--

"licensed conveyancer" has the meaning given by section 11(2) of the [1985 c. 61.] Administration of Justice Act 1985;
"recognised body" means a body corporate for the time being recognised under section 9 (incorporated practices) or section 32 (provision of conveyancing by recognised bodies) of that Act.

Restriction on registration where spouse entitled to more than one charge

2 Where one spouse is entitled by virtue of section 31 to a registrable charge in respect of each of two or more dwelling-houses, only one of the charges to which that spouse is so entitled shall be registered under section 31(10) or under section 2 of the [1972 c. 61.] Land Charges Act 1972 at any one time, and if any of those charges is registered under either of those provisions the Chief Land Registrar, on being satisfied that any other of them is so registered, shall cancel the registration of the charge first registered.

Contract for sale of house affected by registered charge to include term requiring cancellation of registration before completion

3 (1) Where one spouse is entitled by virtue of section 31 to a charge on an estate in a dwelling-house and the charge is registered under section 31(10) or section 2 of the Land Charges Act 1972, it shall be a term of any contract for the sale of that estate whereby the vendor agrees to give vacant possession of the dwelling-house on completion of the contract that the vendor will before such completion procure the cancellation of the registration of the charge at his expense.

(2) Sub-paragraph (1) shall not apply to any such contract made by a vendor who is entitled to sell the estate in the dwelling-house freed from any such charge.

(3) If, on the completion of such a contract as is referred to in sub-paragraph (1), there is delivered to the purchaser or his solicitor an application by the spouse entitled to the charge for the cancellation of the registration of that charge, the term of the contract for which sub-paragraph (1) provides shall be deemed to have been performed.

(4) This paragraph applies only if and so far as a contrary intention is not expressed in the contract.

(5) This paragraph shall apply to a contract for exchange as it applies to a contract for sale.

(6) This paragraph shall, with the necessary modifications, apply to a contract for the grant of a lease or underlease of a dwelling-house as it applies to a contract for the sale of an estate in a dwelling-house.

Cancellation of registration after termination of marriage, etc.

4 (1) Where a spouse's matrimonial home rights are a charge on an estate in the dwelling-house and the charge is registered under section 31(10) or under section 2 of the [1972 c. 61.] Land Charges Act 1972, the Chief Land Registrar shall, subject to sub-paragraph (2), cancel the registration of the charge if he is satisfied--

(a) by the production of a certificate or other sufficient evidence, that either spouse is dead, or

(b) by the production of an official copy of a decree or order of a court, that the marriage in question has been terminated otherwise than by death, or

(c) by the production of an order of the court, that the spouse's matrimonial home rights constituting the charge have been terminated by the order.

(2) Where--

(a) the marriage in question has been terminated by the death of the spouse entitled to an estate in the dwelling-house or otherwise than by death, and

(b) an order affecting the charge of the spouse not so entitled had been made under section 33(5),

then if, after the making of the order, registration of the charge was renewed or the charge registered in pursuance of sub-paragraph (3), the Chief Land Registrar shall not cancel the registration of the charge in accordance with sub-paragraph (1) unless he is also satisfied that the order has ceased to have effect.

(3) Where such an order has been made, then, for the purposes of sub-paragraph (2), the spouse entitled to the charge affected by the order may--

(a) if before the date of the order the charge was registered under section 31(10) or under section 2 of the Land Charges Act 1972, renew the registration of the charge, and

(b) if before the said date the charge was not so registered, register the charge under section 31(10) or under section 2 of the Land Charges Act 1972.

(4) Renewal of the registration of a charge in pursuance of sub-paragraph (3) shall be effected in such manner as may be prescribed, and an application for such renewal or for registration of a charge in pursuance of that sub-paragraph shall contain such particulars of any order affecting the charge made under section 33(5) as may be prescribed.

(5) The renewal in pursuance of sub-paragraph (3) of the registration of a charge shall not affect the priority of the charge.

(6) In this paragraph"prescribed" means prescribed by rules made under section 16 of the Land Charges Act 1972 or section 144 of the [1925 c. 21.] Land Registration Act 1925, as the circumstances of the case require.

Release of matrimonial home rights

5 (1) A spouse entitled to matrimonial home rights may by a release in writing release those rights or release them as respects part only of the dwelling-house affected by them.

(2) Where a contract is made for the sale of an estate or interest in a dwelling-house, or for the grant of a lease or underlease of a dwelling-house, being (in either case) a dwelling-house affected by a charge registered under section 31(10) or under section 2 of the Land Charges Act 1972, then, without prejudice to sub-paragraph (1), the matrimonial home rights constituting the charge shall be deemed to have been released on the happening of whichever of the following events first occurs--

(a) the delivery to the purchaser or lessee, as the case may be, or his solicitor on completion of the contract of an application by the spouse entitled to the charge for the cancellation of the registration of the charge; or

(b) the lodging of such an application at Her Majesty's Land Registry.

Postponement of priority of charge

6 A spouse entitled by virtue of section 31 to a charge on an estate or interest may agree in writing that any other charge on, or interest in, that estate or interest shall rank in priority to the charge to which that spouse is so entitled.

Section 47(11).

SCHEDULE 5 Powers of High Court and county court to remand

Interpretation

1 In this Schedule"the court" means the High Court or a county court and includes--

(a) in relation to the High Court, a judge of that court, and

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