Family Law Act 1996

Part I — Principles of Parts II and III

The general principles underlying Parts II and III

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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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II — Divorce and Separation

Court orders

Divorce and separation

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Circumstances in which orders are made

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Conversion of separation order into divorce order

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Marital breakdown

Marital breakdown

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Statement of marital breakdown

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Reflection and consideration

Period for reflection and consideration

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Attendance at information meetings

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Arrangements for the future

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Orders preventing divorce

Hardship: orders preventing divorce

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Welfare of children

Welfare of children

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Supplementary

Lord Chancellor’s rules

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Resolution of disputes

Directions with respect to mediation

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Adjournments

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Financial provision

Financial arrangements

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Division of pension rights: England and Wales

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Division of pension assets: Scotland

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Grounds for financial provision orders in magistrates' courts

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Jurisdiction and commencement of proceedings

Jurisdiction in relation to divorce and separation

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Time when proceedings for divorce or separation begin

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Intestacy

Intestacy: effect of separation

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Marriage support services

Funding for marriage support services

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• (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.

Provision of marriage counselling

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Interpretation

Interpretation of Part II etc

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Connected proceedings

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Part III — Legal Aid for Mediation in Family Matters

Legal aid for mediation in family matters

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

(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.

Provision and availability of mediation

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After section 13A of the 1988 Act, insert—

(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.

Payment for mediation

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

(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.

Mediation and civil legal aid

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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).

Part IV — Family Homes and Domestic Violence

Rights to occupy matrimonial or civil partnership home

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

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• (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.

Effect of matrimonial home rights as charge on dwelling-house

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• (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.