Family Law Act 1996

• (b) in the case of a civil partnership—

• (i) by the production of a certificate or other sufficient evidence, that either civil partner is dead,

• (ii) by the production of an official copy of an order or decree of a court, that the civil partnership has been terminated otherwise than by death, or

• (iii) by the production of an order of the court, that the civil partner’s home rights constituting the charge have been terminated by the order.

• (2) Where—

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

• (b) an order affecting the charge of the spouse or civil partner 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 or civil partner 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 by land registration rules under the Land Registration Act 2002, as the circumstances of the case require.

Release of home rights

5

• (1) A spouse or civil partner entitled to 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 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 legal representative on completion of the contract of an application by the spouse or civil partner 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 or civil partner 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 or civil partner is so entitled.

SCHEDULE 5

Interpretation

1

In this Schedule “the court” means the High Court or the family court and includes—

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

• (b) in relation to the family court, a judge of that court.

Remand in custody or on bail

2

• (1) Where a court has power to remand a person under section 47, the court may—

• (a) remand him in custody, that is to say, commit him to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require, or

• (b) remand him on bail—

• (i) by taking from him a recognizance (with or without sureties) conditioned as provided in sub-paragraph (3), or

• (ii) by fixing the amount of the recognizances with a view to their being taken subsequently in accordance with paragraph 4 and in the meantime committing the person to custody in accordance with paragraph (a).

• (2) Where a person is brought before the court after remand, the court may further remand him.

• (3) Where a person is remanded on bail under sub-paragraph (1), the court may direct that his recognizance be conditioned for his appearance—

• (a) before that court at the end of the period of remand, or

• (b) at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned.

• (4) Where a recognizance is conditioned for a person’s appearance in accordance with sub-paragraph (1)(b), the fixing of any time for him next to appear shall be deemed to be a remand; but nothing in this sub-paragraph or sub-paragraph (3) shall deprive the court of power at any subsequent hearing to remand him afresh.

• (5) Subject to paragraph 3, the court shall not remand a person under this paragraph for a period exceeding 8 clear days, except that—

• (a) if the court remands him on bail, it may remand him for a longer period if he and the other party consent, and

• (b) if the court adjourns a case under section 48(1), the court may remand him for the period of the adjournment.

• (6) Where the court has power under this paragraph to remand a person in custody it may, if the remand is for a period not exceeding 3 clear days, commit him to the custody of a constable.

Further remand

3

• (1) If the court is satisfied that any person who has been remanded under paragraph 2 is unable by reason of illness or accident to appear or be brought before the court at the expiration of the period for which he was remanded, the court may, in his absence, remand him for a further time; and paragraph 2(5) shall not apply.

• (2) Notwithstanding anything in paragraph 2(1), the power of the court under sub-paragraph (1) to remand a person on bail for a further time may be exercised by enlarging his recognizance and those of any sureties for him to a later time.

• (3) Where a person remanded on bail under paragraph 2 is bound to appear before the court at any time and the court has no power to remand him under sub-paragraph (1), the court may in his absence enlarge his recognizance and those of any sureties for him to a later time; and the enlargement of his recognizance shall be deemed to be a further remand.

Postponement of taking of recognizance

4

Where under paragraph 2(1)(b)(ii) the court fixes the amount in which the principal and his sureties, if any, are to be bound, the recognizance may thereafter be taken by such person as may be prescribed by rules of court, and the same consequences shall follow as if it had been entered into before the court.

SCHEDULE 6

1

After section 38 of the Children Act 1989 insert—

(38A) (1) Where— (a) on being satisfied that there are reasonable grounds for believing that the circumstances with respect to a child are as mentioned in section 31(2)(a) and (b)(i), the court makes an interim care order with respect to a child, and (b) the conditions mentioned in subsection (2) are satisfied, the court may include an exclusion requirement in the interim care order. (2) The conditions are— (a) that there is reasonable cause to believe that, if a person ( “the relevant person”) is excluded from a dwelling-house in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm, and (b) that another person living in the dwelling-house (whether a parent of the child or some other person)— (i) is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and (ii) consents to the inclusion of the exclusion requirement. (3) For the purposes of this section an exclusion requirement is any one or more of the following— (a) a provision requiring the relevant person to leave a dwelling-house in which he is living with the child, (b) a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and (c) a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated. (4) The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the interim care order. (5) Where the court makes an interim care order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement. (6) Where the court attaches a power of arrest to an exclusion requirement of an interim care order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement. (7) Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the interim care order. (8) Where a power of arrest is attached to an exclusion requirement of an interim care order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement. (9) Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act. (10) If, while an interim care order containing an exclusion requirement is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the interim care order shall cease to have effect in so far as it imposes the exclusion requirement. (38B) (1) In any case where the court has power to include an exclusion requirement in an interim care order, the court may accept an undertaking from the relevant person. (2) No power of arrest may be attached to any undertaking given under subsection (1). (3) An undertaking given to a court under subsection (1)— (a) shall be enforceable as if it were an order of the court, and (b) shall cease to have effect if, while it is in force, the local authority have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours. (4) This section has effect without prejudice to the powers of the High Court and county court apart from this section. (5) In this section “exclusion requirement” and “relevant person” have the same meaning as in section 38A.

2

In section 39 of the Children Act 1989 (discharge and variation etc. of care orders and supervision orders) after subsection (3) insert—

(3A) On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement. (3B) Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order 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).

3

After section 44 of the Children Act 1989 insert—

(44A) (1) Where— (a) on being satisfied as mentioned in section 44(1)(a), (b) or (c), the court makes an emergency protection order with respect to a child, and (b) the conditions mentioned in subsection (2) are satisfied, the court may include an exclusion requirement in the emergency protection order. (2) The conditions are— (a) that there is reasonable cause to believe that, if a person ( “the relevant person”) is excluded from a dwelling-house in which the child lives, then— (i) in the case of an order made on the ground mentioned in section 44(1)(a), the child will not be likely to suffer significant harm, even though the child is not removed as mentioned in section 44(1)(a)(i) or does not remain as mentioned in section 44(1)(a)(ii), or (ii) in the case of an order made on the ground mentioned in paragraph (b) or (c) of section 44(1), the enquiries referred to in that paragraph will cease to be frustrated, and (b) that another person living in the dwelling-house (whether a parent of the child or some other person)— (i) is able and willing to give to the child the care which it would be reasonable to expect a parent to give him, and (ii) consents to the inclusion of the exclusion requirement. (3) For the purposes of this section an exclusion requirement is any one or more of the following— (a) a provision requiring the relevant person to leave a dwelling-house in which he is living with the child, (b) a provision prohibiting the relevant person from entering a dwelling-house in which the child lives, and (c) a provision excluding the relevant person from a defined area in which a dwelling-house in which the child lives is situated. (4) The court may provide that the exclusion requirement is to have effect for a shorter period than the other provisions of the order. (5) Where the court makes an emergency protection order containing an exclusion requirement, the court may attach a power of arrest to the exclusion requirement. (6) Where the court attaches a power of arrest to an exclusion requirement of an emergency protection order, it may provide that the power of arrest is to have effect for a shorter period than the exclusion requirement. (7) Any period specified for the purposes of subsection (4) or (6) may be extended by the court (on one or more occasions) on an application to vary or discharge the emergency protection order. (8) Where a power of arrest is attached to an exclusion requirement of an emergency protection order by virtue of subsection (5), a constable may arrest without warrant any person whom he has reasonable cause to believe to be in breach of the requirement. (9) Sections 47(7), (11) and (12) and 48 of, and Schedule 5 to, the Family Law Act 1996 shall have effect in relation to a person arrested under subsection (8) of this section as they have effect in relation to a person arrested under section 47(6) of that Act. (10) If, while an emergency protection order containing an exclusion requirement is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours, the order shall cease to have effect in so far as it imposes the exclusion requirement. (44B) (1) In any case where the court has power to include an exclusion requirement in an emergency protection order, the court may accept an undertaking from the relevant person. (2) No power of arrest may be attached to any undertaking given under subsection (1). (3) An undertaking given to a court under subsection (1)— (a) shall be enforceable as if it were an order of the court, and (b) shall cease to have effect if, while it is in force, the applicant has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous period of more than 24 hours. (4) This section has effect without prejudice to the powers of the High Court and county court apart from this section. (5) In this section “exclusion requirement” and “relevant person” have the same meaning as in section 44A.

4

In section 45 of the Children Act 1989 (duration of emergency protection orders and other supplemental provisions), insert after subsection (8)—

(8A) On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an emergency protection order may be varied or discharged by the court in so far as it imposes the exclusion requirement. (8B) Where a power of arrest has been attached to an exclusion requirement of an emergency protection order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order 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).

5

In section 105(1) of the Children Act 1989 (interpretation), after the definition of “domestic premises”, insert—

“dwelling-house” includes— (a) any building or part of a building which is occupied as a dwelling; (b) any caravan, house-boat or structure which is occupied as a dwelling; and any yard, garden, garage or outhouse belonging to it and occupied with it;

.

SCHEDULE 7

Part I — General

Interpretation

1

In this Schedule—

• “civil partner”, except in paragraph 2, includes (where the context requires) former civil partner;

• “cohabitant”, except in paragraph 3, includes (where the context requires) former cohabitant;

• “the court” means the High Court or the family court,

• “landlord” includes—any person from time to time deriving title under the original landlord; andin relation to any dwelling-house, any person other than the tenant who is, or (but for Part VII of the Rent Act 1977 or Part II of the Rent (Agriculture) Act 1976) would be, entitled to possession of the dwelling-house;

• “Part II order” means an order under Part II of this Schedule;

• “a relevant tenancy” means—a protected tenancy or statutory tenancy within the meaning of the Rent Act 1977;a statutory tenancy within the meaning of the Rent (Agriculture) Act 1976;a secure tenancy within the meaning of section 79 of the Housing Act 1985; . . .an assured tenancy or assured agricultural occupancy within the meaning of Part I of the Housing Act 1988; ...an introductory tenancy within the meaning of Chapter I of Part V of the Housing Act 1996; or an occupation contract within the meaning of the Renting Homes (Wales) Act 2016 (anaw 1) (see section 7).

• “spouse”, except in paragraph 2, includes (where the context requires) former spouse; and

• “tenancy” includes sub-tenancy.

Cases in which the court may make an order

2

• (1) This paragraph applies if one spouse or civil partner is entitled, either in his own right or jointly with the other spouse or civil partner, to occupy a dwelling-house by virtue of a relevant tenancy.

• (2) The court may make a Part II order—

• (a) on making a divorce, nullity of marriage or judicial separation order or at any time after making such an order (whether, in the case of a divorce or nullity of marriage order, before or after the order is made final), or

• (b) at any time when it has power to make a property adjustment order under Part 2 of Schedule 5 to the Civil Partnership Act 2004 with respect to the civil partnership.

3

• (1) This paragraph applies if one cohabitant is entitled, either in his own right or jointly with the other cohabitant, to occupy a dwelling-house by virtue of a relevant tenancy.

• (2) If the cohabitants cease to cohabit, the court may make a Part II order.

4

The court shall not make a Part II order unless the dwelling-house is or was—

• (a) in the case of spouses, a matrimonial home; . . .

• (aa) in the case of civil partners, a civil partnership home; or

• (b) in the case of cohabitants, a home in which they cohabited.

Matters to which the court must have regard

5

In determining whether to exercise its powers under Part II of this Schedule and, if so, in what manner, the court shall have regard to all the circumstances of the case including—

• (a) the circumstances in which the tenancy was granted to either or both of the spouses , civil partners or cohabitants or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy;

• (b) the matters mentioned in section 33(6)(a), (b) and (c) and, where the parties are cohabitants and only one of them is entitled to occupy the dwelling-house by virtue of the relevant tenancy, the further matters mentioned in section 36(6)(e), (f), (g) and (h); and

• (c) the suitability of the parties as tenants.

Part II — Orders that may be made

References to entitlement to occupy

6

References in this Part of this Schedule to a spouse , a civil partner or a cohabitant being entitled to occupy a dwelling-house by virtue of a relevant tenancy apply whether that entitlement is in his own right or jointly with the other spouse , civil partner or cohabitant.

Protected, secure or assured tenancy or assured agricultural occupancy

7

• (1) If a spouse , civil partner or cohabitant is entitled to occupy the dwelling-house by virtue of a protected tenancy within the meaning of the Rent Act 1977, a secure tenancy within the meaning of the Housing Act 1985 , an assured tenancy or assured agricultural occupancy within the meaning of Part I of the Housing Act 1988 , an introductory tenancy within the meaning of Chapter I of Part V of the Housing Act 1996 or an occupation contract within the meaning of the Renting Homes (Wales) Act 2016 (anaw 1) (see section 7), the court may by order direct that, as from such date as may be specified in the order, there shall, by virtue of the order and without further assurance, be transferred to, and vested in, the other spouse , civil partner or cohabitant—

• (a) the estate or interest which the spouse , civil partner or cohabitant so entitled had in the dwelling-house immediately before that date by virtue of the lease or agreement creating the tenancy and any assignment of that lease or agreement, with all rights, privileges and appurtenances attaching to that estate or interest but subject to all covenants, obligations, liabilities and incumbrances to which it is subject; and

• (b) where the spouse , civil partner or cohabitant so entitled is an assignee of such lease or agreement, the liability of that spouse , civil partner or cohabitant under any covenant of indemnity by the assignee express or implied in the assignment of the lease or agreement to that spouse , civil partner or cohabitant.

• (2) If an order is made under this paragraph, any liability or obligation to which the spouse , civil partner or cohabitant so entitled is subject under any covenant having reference to the dwelling-house in the lease or agreement, being a liability or obligation falling due to be discharged or performed on or after the date so specified, shall not be enforceable against that spouse , civil partner or cohabitant.

• (3) If the spouse, civil partner or cohabitant so entitled is a successor within the meaning of Part 4 of the Housing Act 1985—

• (a) his former spouse (or, in the case of judicial separation, his spouse),

• (b) his former civil partner (or, if a separation order is in force, his civil partner), or

• (c) his former cohabitant,

is to be deemed also to be a successor within the meaning of that Part.

• (3A) If the spouse, civil partner or cohabitant so entitled is a successor within the meaning of section 132 of the Housing Act 1996—

• (a) his former spouse (or, in the case of judicial separation, his spouse),

• (b) his former civil partner (or, if a separation order is in force, his civil partner), or

• (c) his former cohabitant,

is to be deemed also to be a successor within the meaning of that section.

• (4) If the spouse, civil partner or cohabitant so entitled is for the purposes of section 17 of the Housing Act 1988 a successor in relation to the tenancy or occupancy—

• (a) his former spouse (or, in the case of judicial separation, his spouse),

• (b) his former civil partner (or, if a separation order is in force, his civil partner), or

• (c) his former cohabitant,

is to be deemed to be a successor in relation to the tenancy or occupancy for the purposes of that section.

• (5) If the transfer under sub-paragraph (1) is of an assured agricultural occupancy, then, for the purposes of Chapter III of Part I of the Housing Act 1988—

• (a) the agricultural worker condition is fulfilled with respect to the dwelling-house while the spouse , civil partner or cohabitant to whom the assured agricultural occupancy is transferred continues to be the occupier under that occupancy, and

• (b) that condition is to be treated as so fulfilled by virtue of the same paragraph of Schedule 3 to the Housing Act 1988 as was applicable before the transfer.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) If the spouse, civil partner or cohabitant so entitled is a priority successor within the meaning of section 75 of the Renting Homes (Wales) Act 2016 (anaw 1)—

• (a) the former spouse (or, in the case of judicial separation, the spouse),

• (b) the former civil partner (or, if a separation order is in force, the civil partner), or

• (c) the former cohabitant,

of the priority successor is to be deemed also to be a successor within the meaning of that section.

Statutory tenancy within the meaning of the Rent Act 1977

8

• (1) This paragraph applies if the spouse , civil partner or cohabitant is entitled to occupy the dwelling-house by virtue of a statutory tenancy within the meaning of the Rent Act 1977.

• (2) The court may by order direct that, as from the date specified in the order—

• (a) that spouse , civil partner or cohabitant is to cease to be entitled to occupy the dwelling-house; and

• (b) the other spouse , civil partner or cohabitant is to be deemed to be the tenant or, as the case may be, the sole tenant under that statutory tenancy.

• (3) The question whether the provisions of paragraphs 1 to 3, or (as the case may be) paragraphs 5 to 7 of Schedule 1 to the Rent Act 1977, as to the succession by the surviving spouse or surviving civil partner of a deceased tenant, or by a member of the deceased tenant’s family, to the right to retain possession are capable of having effect in the event of the death of the person deemed by an order under this paragraph to be the tenant or sole tenant under the statutory tenancy is to be determined according as those provisions have or have not already had effect in relation to the statutory tenancy.

Statutory tenancy within the meaning of the Rent (Agriculture) Act 1976

9

• (1) This paragraph applies if the spouse , civil partner or cohabitant is entitled to occupy the dwelling-house by virtue of a statutory tenancy within the meaning of the Rent (Agriculture) Act 1976.

• (2) The court may by order direct that, as from such date as may be specified in the order—

• (a) that spouse , civil partner or cohabitant is to cease to be entitled to occupy the dwelling-house; and

• (b) the other spouse , civil partner or cohabitant is to be deemed to be the tenant or, as the case may be, the sole tenant under that statutory tenancy.

• (3) A spouse , civil partner or cohabitant who is deemed under this paragraph to be the tenant under a statutory tenancy is (within the meaning of that Act) a statutory tenant in his own right, or a statutory tenant by succession, according as the other spouse , civil partner or cohabitant was a statutory tenant in his own right or a statutory tenant by succession.

Part III — Supplementary provisions

Compensation

10

• (1) If the court makes a Part II order, it may by the order direct the making of a payment by the spouse , civil partner or cohabitant to whom the tenancy is transferred ( “the transferee”) to the other spouse , civil partner or cohabitant ( “the transferor”).

• (2) Without prejudice to that, the court may, on making an order by virtue of sub-paragraph (1) for the payment of a sum—

• (a) direct that payment of that sum or any part of it is to be deferred until a specified date or until the occurrence of a specified event, or

• (b) direct that that sum or any part of it is to be paid by instalments.

• (3) Where an order has been made by virtue of sub-paragraph (1), the court may, on the application of the transferee or the transferor—

• (a) exercise its powers under sub-paragraph (2), or

• (b) vary any direction previously given under that sub-paragraph,

at any time before the sum whose payment is required by the order is paid in full.

• (4) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court shall have regard to all the circumstances including—

• (a) the financial loss that would otherwise be suffered by the transferor as a result of the order;

• (b) the financial needs and financial resources of the parties; and

• (c) the financial obligations which the parties have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child.

• (5) The court shall not give any direction under sub-paragraph (2) unless it appears to it that immediate payment of the sum required by the order would cause the transferee financial hardship which is greater than any financial hardship that would be caused to the transferor if the direction were given.

Liabilities and obligations in respect of the dwelling-house

11

• (1) If the court makes a Part II order, it may by the order direct that both spouses , civil partners or cohabitants are to be jointly and severally liable to discharge or perform any or all of the liabilities and obligations in respect of the dwelling-house (whether arising under the tenancy or otherwise) which—

• (a) have at the date of the order fallen due to be discharged or performed by one only of them; or

• (b) but for the direction, would before the date specified as the date on which the order is to take effect fall due to be discharged or performed by one only of them.

• (2) If the court gives such a direction, it may further direct that either spouse , civil partner or cohabitant is to be liable to indemnify the other in whole or in part against any payment made or expenses incurred by the other in discharging or performing any such liability or obligation.

Date when order made between spouses or civil partners takes effect

12

The date specified in a Part II order as the date on which the order is to take effect must not be earlier than—

• (a) in the case of a marriage in respect of which a divorce or nullity of marriage order has been made, the date on which the order is made final;

• (b) in the case of a civil partnership in respect of which a dissolution or nullity order has been made, the date on which the order is made final.

Effect of remarriage or subsequent civil partnership

13

• (1) If after the making of an order dissolving or annulling a marriage either spouse remarries or forms a civil partnership, that spouse is not entitled to apply, by reference to the making of that order, for a Part II order.

• (2) If after the making of a dissolution or nullity order either civil partner forms a subsequent civil partnership or marries, that civil partner is not entitled to apply, by reference to the making of that order, for a Part II order.

• (3) In sub-paragraphs (1) and (2)—

• (a) the references to remarrying and marrying include references to cases where the marriage is by law void or voidable, and

• (b) the references to forming a civil partnership include references to cases where the civil partnership is by law void or voidable.

Rules of court

14

• (1) Rules of court shall be made requiring the court, before it makes an order under this Schedule, to give the landlord of the dwelling-house to which the order will relate an opportunity of being heard.

• (2) Rules of court may provide that an application for a Part II order by reference to an order or decree may not, without the leave of the court by which that order was made or decree was granted, be made after the expiration of such period from the order or grant as may be prescribed by the rules.

Saving for other provisions of Act

15

• (1) If a spouse or civil partner is entitled to occupy a dwelling-house by virtue of a tenancy, this Schedule does not affect the operation of sections 30 and 31 in relation to the other spouse’s or civil partner’s home rights.

• (2) If a spouse , civil partner or cohabitant is entitled to occupy a dwelling-house by virtue of a tenancy, the court’s powers to make orders under this Schedule are additional to those conferred by sections 33, 35 and 36.

SCHEDULE 8

Part I — Amendments connected with Part II

The Wills Act 1837 (c. 26)

1

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The Judicial Proceedings (Regulation of Reports) Act 1926 (c. 61)

2

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The Maintenance Orders Act 1950 (c. 37)

3

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The Matrimonial Causes Act 1973 (c. 18)

4

The 1973 Act is amended as follows.

5

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6

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7

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8

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9

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10

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11

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12

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

13

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14

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

15

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

16

• (1) Section 31 (variation etc. of orders) is amended as follows.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4AB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In subsection (5)—

• (a) insert, at the beginning, “Subject to subsections (7A) to (7F) below and without prejudice to any power exercisable by virtue of subsection (2)(d),(dd) or (e) above or otherwise than by virtue of this section,”; and

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) In subsection (7)(a)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) after “sufficient” insert “ (in the light of any proposed exercise by the court, where the marriage has been dissolved, of its powers under subsection (7B) below)”.

• (7) After subsection (7), insert—

(7A) Subsection (7B) below applies where, after the dissolution of a marriage, the court— (a) discharges a periodical payments order or secured periodical payments order made in favour of a party to the marriage; or (b) varies such an order so that payments under the order are required to be made or secured only for such further period as is determined by the court. (7B) The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of— (a) an order for the payment of a lump sum in favour of a party to the marriage; (b) one or more property adjustment orders in favour of a party to the marriage; (c) a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for— (i) a periodical payments or secured periodical payments order, or (ii) an extension of the period to which the original order is limited by any variation made by the court. (7C) An order for the payment of a lump sum made under subsection (7B) above may— (a) provide for the payment of that sum by instalments of such amount as may be specified in the order; and (b) require the payment of the instalments to be secured to the satisfaction of the court. (7D) Subsections (7) and (8) of section 22A above apply where the court makes an order for the payment of a lump sum under subsection (7B) above as they apply where it makes such an order under section 22A above. (7E) If under subsection (7B) above the court makes more than one property adjustment order in favour of the same party to the marriage, each of those orders must fall within a different paragraph of section 21(2) above. (7F) Sections 24A and 30 above apply where the court makes a property adjustment order under subsection (7B) above as they apply where it makes such an order under section 23A above.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

The Domicile and Matrimonial Proceedings Act 1973 (c. 45)

26

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

The Inheritance (Provision for Family and Dependants) Act 1975 (c. 63)

27

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

The Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22)

28

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

The Housing Act 1980 (c. 51)

29

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

Senior Courts Act 1981(c. 54)

30

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

The Civil Jurisdiction and Judgments Act 1982 (c. 27)

31

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

The Matrimonial and Family Proceedings Act 1984 (c. 42)

32

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

The Finance Act 1985 (c. 54)

33

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

The Housing Act 1985 (c. 68)

34

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

The Housing Associations Act 1985 (c. 69)

35

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

The Agricultural Holdings Act 1986 (c. 5)

36

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

The Family Law Act 1986 (c. 55)

37

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

The Landlord and Tenant Act 1987 (c. 31)

38

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

The Legal Aid Act 1988 (c. 34)

39

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

The Housing Act 1988 (c. 50)

40

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

The Children Act 1989 (c. 41)

41

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

The Local Government and Housing Act 1989 (c. 42)

42

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

Pensions Act 1995 (c. 26)

43

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

Part II — Amendments connected with Part III

The Legal Aid Act 1988 (c. 34)

44

• (1) The 1988 Act is amended as follows.

• (2) In section 1, after “III” insert “ IIIA ”.

• (3) In sections 1, 2(11), 3(2), 4(1), (2) and (4), 5(1) and (6), 6(2)(a) and (3)(a), 34(2)(c) and (d) and (11), 38(1) and (6) and 39(1) and (4)(a), after “assistance”, in each place, insert “ , mediation ”.

• (4) In section 3(9), after paragraph (a) insert—

(aa) the provision of mediation;

.

• (5) In section 6, after subsection (3)(c) insert—

(ca) any sum which is to be paid out of property on which it is charged under regulations under section 13C(5) below

.

• (6) In section 15—

• (a) in subsection (1), after “(3D)” insert “ and (3F) ”; and

• (b) in subsection (3D), after “(3)” insert “ and (3F) ”.

• (7) In section 16(9), leave out “and” at the end of paragraph (a).

• (8) In section 38—

• (a) in subsection (1)(f), after “legal representatives” insert “ or mediators ”; and

• (b) in subsection (6), after “legal representative” insert “ or mediator ”.

• (9) In section 43—

• (a) after “ “assistance”” insert “ , “mediation” ”

• (b) after “(3)” insert “ , (3A) ”; and

• (c) after the definition of “financial resources” insert—

“family matters” has the meaning assigned by section 13A(2);

.

Part III — Amendments connected with Part IV

The Land Registration Act 1925 (c. 21)

45

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

The Land Charges Act 1972 (c. 61)

46

In section 1(6A) of the Land Charges Act 1972 (cases where county court has jurisdiction to vacate registration) in paragraph (d)—

• (a) after “section 1 of the Matrimonial Homes Act 1983” insert “ or section 33 of the Family Law Act 1996 ”; and

• (b) for “that section” substitute “ either of those sections ”.

47

In section 2(7) of that Act (Class F land charge) for “Matrimonial Homes Act 1983” substitute “ Part IV of the Family Law Act 1996 ”.

The Land Compensation Act 1973 (c. 26)

48

• (1) Section 29A of the Land Compensation Act 1973 (spouses having statutory rights of occupation) is amended as follows.

• (2) In subsection (1), for “rights of occupation (within the meaning of the Matrimonial Homes Act 1983)” substitute “ matrimonial home rights (within the meaning of Part IV of the Family Law Act 1996) ”.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The Magistrates’ Courts Act 1980 (c. 43)

49

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

The Contempt of Court Act 1981 (c. 49)

50

In Schedule 3 to the Contempt of Court Act 1981 (application of Magistrates’ Courts Act 1980 to civil contempt proceedings), in paragraph 3 for the words from “ “or, having been arrested”onwards substitute—

“or, having been arrested under section 47 of the Family Law Act 1996 in connection with the matter of the complaint, is at large after being remanded under subsection (7)(b) or (10) of that section.”

Senior Courts Act 1981(c. 54)

51

In Schedule 1 to the Senior Courts Act 1981(distribution of business in High Court), in paragraph 3 (Family Division)—

• (a) in paragraph (d), after “matrimonial proceedings” insert “ or proceedings under Part IV of the Family Law Act 1996 ”, and

• (b) in paragraph (f)(i), for “Domestic Violence and Matrimonial Proceedings Act 1976” substitute “ Part IV of the Family Law Act 1996 ”.

The Matrimonial and Family Proceedings Act 1984 (c. 42)

52

For section 22 of the Matrimonial and Family Proceedings Act 1984 substitute—

(22) (1) This section applies if— (a) an application is made by a party to a marriage for an order for financial relief; and (b) one of the parties is entitled, either in his own right or jointly with the other party, to occupy a dwelling-house situated in England or Wales by virtue of a tenancy which is a relevant tenancy within the meaning of Schedule 7 to the Family Law Act 1996 (certain statutory tenancies). (2) The court may make in relation to that dwelling-house any order which it could make under Part II of that Schedule if— (a) a divorce order, (b) a separation order, or (c) a decree of nullity of marriage, had been made or granted in England and Wales in respect of the marriage. (3) The provisions of paragraphs 10, 11 and 14(1) in Part III of that Schedule apply in relation to any order under this section as they apply to any order under Part II of that Schedule.

The Housing Act 1985 (c. 68)

53

• (1) Section 85 of the Housing Act 1985 (extended discretion of court in certain proceedings for possession) is amended as follows.

• (2) In subsection (5)—

• (a) in paragraph (a), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “ matrimonial home rights under Part IV of the Family Law Act 1996 ”;. . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) After subsection (5) insert—

(5A) If proceedings are brought for possession of a dwelling-house which is let under a secure tenancy and— (a) an order is in force under section 35 of the Family Law Act 1996 conferring rights on the former spouse of the tenant or an order is in force under section 36 of that Act conferring rights on a cohabitant or former cohabitant (within the meaning of that Act) of the tenant, (b) the former spouse, cohabitant or former cohabitant is then in occupation of the dwelling-house, and (c) the tenancy is terminated as a result of those proceedings, the former spouse, cohabitant or former cohabitant shall, so long as he or she remains in occupation, have the same rights in relation to, or in connection with, any adjournment, stay, suspension or postponement in pursuance of this section as he or she would have if the rights conferred by the order referred to in paragraph (a) were not affected by the termination of the tenancy.

54

In section 99B of that Act (persons qualifying for compensation for improvements) in subsection (2) for paragraph (f) substitute—

(f) a spouse, former spouse, cohabitant or former cohabitant of the improving tenant to whom the tenancy has been transferred by an order made under Schedule 1 to the Matrimonial Homes Act 1983 or Schedule 7 to the Family Law Act 1996.

55

In section 101 of that Act (rent not to be increased on account of tenant’s improvements) in subsection (3) for paragraph (d) substitute—

(d) a spouse, former spouse, cohabitant or former cohabitant of the tenant to whom the tenancy has been transferred by an order made under Schedule 1 to the Matrimonial Homes Act 1983 or Schedule 7 to the Family Law Act 1996.

56

In section 171B of that Act (extent of preserved right to buy: qualifying persons and dwelling-houses) in subsection (4)(b)(ii) after “Schedule 1 to the Matrimonial Homes Act 1983” insert “ or Schedule 7 to the Family Law Act 1996 ”.

The Insolvency Act 1986 (c. 45)

57

• (1) Section 336 of the Insolvency Act 1986 (rights of occupation etc. of bankrupt’s spouse) is amended as follows.

• (2) In subsection (1), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “ matrimonial home rights under Part IV of the Family Law Act 1996 ”.

• (3) In subsection (2)—

• (a) for “rights of occupation under the Act of 1983” substitute “ matrimonial home rights under the Act of 1996 ”, and

• (b) in paragraph (b), for “under section 1 of that Act” substitute “ under section 33 of that Act ”.

• (4) In subsection (4), for “section 1 of the Act of 1983” substitute “ section 33 of the Act of 1996 ”.

58

• (1) Section 337 of that Act is amended as follows.

• (2) In subsection (2), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “ matrimonial home rights under Part IV of the Family Law Act 1996 ”.

• (3) For subsection (3) substitute—

(3) The Act of 1996 has effect, with the necessary modifications, as if— (a) the rights conferred by paragraph (a) of subsection (2) were matrimonial home rights under that Act, (b) any application for such leave as is mentioned in that paragraph were an application for an order under section 33 of that Act, and (c) any charge under paragraph (b) of that subsection on the estate or interest of the trustee were a charge under that Act on the estate or interest of a spouse.

• (4) In subsections (4) and (5) for “section 1 of the Act of 1983” substitute “ section 33 of the Act of 1996 ”.

The Housing Act 1988 (c. 50)

59

• (1) Section 9 of the Housing Act 1988 (extended discretion of court in possession claims) is amended as follows.

• (2) In subsection (5)—

• (a) in paragraph (a), for “rights of occupation under the Matrimonial Homes Act 1983” substitute “ matrimonial home rights under Part IV of the Family Law Act 1996 ”, . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) After subsection (5) insert—

(5A) In any case where— (a) at a time when proceedings are brought for possession of a dwelling-house let on an assured tenancy— (i) an order is in force under section 35 of the Family Law Act 1996 conferring rights on the former spouse of the tenant, or (ii) an order is in force under section 36 of that Act conferring rights on a cohabitant or former cohabitant (within the meaning of that Act) of the tenant, (b) that cohabitant, former cohabitant or former spouse is then in occupation of the dwelling-house, and (c) the assured tenancy is terminated as a result of those proceedings, the cohabitant, former cohabitant or former spouse shall have the same rights in relation to, or in connection with, any such adjournment as is referred to in subsection (1) above or any such stay, suspension or postponement as is referred to in subsection (2) above as he or she would have if the rights conferred by the order referred to in paragraph (a) above were not affected by the termination of the tenancy.

The Children Act 1989 (c. 41)

60

• (1) In section 8(4) of the Children Act 1989 (meaning of “family proceedings” for purposes of that Act), omit paragraphs (c) and (f) and after paragraph (g) insert—

(h) the Family Law Act 1996.

• (2) In Schedule 11 to that Act, in paragraph 6(a) (amendment of the Domestic Proceedings and Magistrates’ Courts Act 1978), for “sections 16(5)(c) and” substitute “ section ”.

The Courts and Legal Services Act 1990 (c. 41)

61

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

SCHEDULE 9

Transitional arrangements for those who have been living apart

1

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

Modifications of enactments etc.

2

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

3

If an Act or subordinate legislation—

• (a) refers to an enactment repealed or amended by or under this Act, and

• (b) was passed or made before the repeal or amendment came into force,

the Lord Chancellor may by order make such consequential modifications of any provision contained in the Act or subordinate legislation as appears to him necessary or expedient in respect of the reference.

Expressions used in paragraphs 2 and 3

4

In paragraphs 2 and 3—

• ...

• ...

• ...

• “subordinate legislation” has the same meaning as in the Interpretation Act 1978.

Proceedings under way

5

• (1) Except for paragraph 6 of this Schedule, nothing in any provision of Part II, Part I of Schedule 8 or Schedule 10—

• (a) applies to, or affects—

• (i) any decree granted before the coming into force of the provision;

• (ii) any proceedings begun, by petition or otherwise, before that time; or

• (iii) any decree granted in any such proceedings;

• (b) affects the operation of—

• (i) the 1973 Act,

• (ii) any other enactment, or

• (iii) any subordinate legislation,

in relation to any such proceedings or decree or to any proceedings in connection with any such proceedings or decree; or

• (c) without prejudice to paragraph (b), affects any transitional provision having effect under Schedule 1 to the 1973 Act.

• (2) In this paragraph, “subordinate legislation” has the same meaning as in the Interpretation Act 1978.

6

• (1) Section 31 of the 1973 Act has effect as amended by this Act in relation to any order under Part II of the 1973 Act made after the coming into force of the amendments.

• (2) Subsections (7) to (7F) of that section also have effect as amended by this Act in relation to any order made before the coming into force of the amendments.

Interpretation

7

In paragraphs 8 to 15 “the 1983 Act” means the Matrimonial Homes Act 1983.

Pending applications for orders relating to occupation and molestation

8

• (1) In this paragraph and paragraph 10 “the existing enactments” means—

• (a) the Domestic Violence and Matrimonial Proceedings Act 1976;

• (b) sections 16 to 18 of the Domestic Proceedings and Magistrates’ Courts Act 1978; and

• (c) sections 1 and 9 of the 1983 Act.

• (2) Nothing in Part IV, Part III of Schedule 8 or Schedule 10 affects any application for an order or injunction under any of the existing enactments which is pending immediately before the commencement of the repeal of that enactment.

Pending applications under Schedule 1 to the Matrimonial Homes Act 1983

9

Nothing in Part IV, Part III of Schedule 8 or Schedule 10 affects any application for an order under Schedule 1 to the 1983 Act which is pending immediately before the commencement of the repeal of that Schedule.

Existing orders relating to occupation and molestation

10

• (1) In this paragraph “an existing order” means any order or injunction under any of the existing enactments which—

• (a) is in force immediately before the commencement of the repeal of that enactment; or

• (b) was made or granted after that commencement in proceedings brought before that commencement.

• (2) Subject to sub-paragraphs (3) and (4), nothing in Part IV, Part III of Schedule 8 or Schedule 10—

• (a) prevents an existing order from remaining in force; or

• (b) affects the enforcement of an existing order.

• (3) Nothing in Part IV, Part III of Schedule 8 or Schedule 10 affects any application to extend, vary or discharge an existing order, but the court may, if it thinks it just and reasonable to do so, treat the application as an application for an order under Part IV.

• (4) The making of an order under Part IV between parties with respect to whom an existing order is in force discharges the existing order.

Matrimonial home rights

11

• (1) Any reference (however expressed) in any enactment, instrument or document (whether passed or made before or after the passing of this Act) to rights of occupation under, or within the meaning of, the 1983 Act shall be construed, so far as is required for continuing the effect of the instrument or document, as being or as the case requires including a reference to matrimonial home rights under, or within the meaning of, Part IV.

• (2) Any reference (however expressed) in this Act or in any other enactment, instrument or document (including any enactment amended by Schedule 8) to matrimonial home rights under, or within the meaning of, Part IV shall be construed as including, in relation to times, circumstances and purposes before the commencement of sections 30 to 32, a reference to rights of occupation under, or within the meaning of, the 1983 Act.

12

• (1) Any reference (however expressed) in any enactment, instrument or document (whether passed or made before or after the passing of this Act) to registration under section 2(8) of the 1983 Act shall, in relation to any time after the commencement of sections 30 to 32, be construed as being or as the case requires including a reference to registration under section 31(10).

• (2) Any reference (however expressed) in this Act or in any other enactment, instrument or document (including any enactment amended by Schedule 8) to registration under section 31(10) shall be construed as including a reference to—

• (a) registration under section 2(7) of the Matrimonial Homes Act 1967 or section 2(8) of the 1983 Act, and

• (b) registration by caution duly lodged under section 2(7) of the Matrimonial Homes Act 1967 before 14th February 1983 (the date of the commencement of section 4(2) of the Matrimonial Homes and Property Act 1981).

13

In sections 30 and 31 and Schedule 4—

• (a) any reference to an order made under section 33 shall be construed as including a reference to an order made under section 1 of the 1983 Act, and

• (b) any reference to an order made under section 33(5) shall be construed as including a reference to an order made under section 1 of the 1983 Act by virtue of section 2(4) of that Act.

14

Neither section 31(11) nor the repeal by the Matrimonial Homes and Property Act 1981 of the words “or caution” in section 2(7) of the Matrimonial Homes Act 1967, affects any caution duly lodged as respects any estate or interest before 14th February 1983.

15

Nothing in this Schedule is to be taken to prejudice the operation of sections 16 and 17 of the Interpretation Act 1978 (which relate to the effect of repeals).

SCHEDULE 10

Divorce and separation.

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

42A

• (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.

Part 4A — Forced marriage

Forced marriage protection orders

Further provisions relating to home rights.

63A

• (1) The court may make an order for the purposes of protecting—

• (a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or

• (b) a person who has been forced into a marriage.

• (2) In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected.

• (3) In ascertaining that person's well-being, the court must, in particular, have such regard to the person's wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person's age and understanding.

• (4) For the purposes of this Part a person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A's free and full consent.

• (5) For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person.

• (6) In this Part—

• “force” includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and

• “forced marriage protection order” means an order under this section.

63B

• (1) A forced marriage protection order may contain—

• (a) such prohibitions, restrictions or requirements; and

• (b) such other terms;

as the court considers appropriate for the purposes of the order.

• (2) The terms of such orders may, in particular, relate to—

• (a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;

• (b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who force or attempt to force, or may force or attempt to force, a person to enter into a marriage;

• (c) other persons who are, or may become, involved in other respects as well as respondents of any kind.

• (3) For the purposes of subsection (2) examples of involvement in other respects are—

• (a) aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or

• (b) conspiring to force, or to attempt to force, a person to enter into a marriage.

63C

• (1) The court may make a forced marriage protection order—

• (a) on an application being made to it; or

• (b) without an application being made to it but in the circumstances mentioned in subsection (6).

• (2) An application may be made by—

• (a) the person who is to be protected by the order; or

• (b) a relevant third party.

• (3) An application may be made by any other person with the leave of the court.

• (4) In deciding whether to grant leave, the court must have regard to all the circumstances including—

• (a) the applicant's connection with the person to be protected;

• (b) the applicant's knowledge of the circumstances of the person to be protected; and

• (c) the wishes and feelings of the person to be protected so far as they are reasonably ascertainable and so far as the court considers it appropriate, in the light of the person's age and understanding, to have regard to them.

• (5) An application under this section may be made in other family proceedings or without any other family proceedings being instituted.

• (6) The circumstances in which the court may make an order without an application being made are where—

• (a) any other family proceedings are before the court (“the current proceedings”);

• (b) the court considers that a forced marriage protection order should be made to protect a person (whether or not a party to the current proceedings); and

• (c) a person who would be a respondent to any such proceedings for a forced marriage protection order is a party to the current proceedings.

• (7) In this section—

• “family proceedings” has the same meaning as in Part 4 (see section 63(1) and (2)) but also includes— proceedings under the inherent jurisdiction of the High Court in relation to adults;proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 (c. 41) which includes an exclusion requirement (as defined in section 44A(3) of that Act); and proceedings in which the court has made an order under section 50 of the Act of 1989 (recovery of abducted children etc. ); and

• “relevant third party” means a person specified, or falling within a description of persons specified, by order of the Lord Chancellor.

• (8) An order of the Lord Chancellor under subsection (7) may, in particular, specify the Secretary of State.

Further provision about orders

63D

• (1) The court may, in any case where it considers that it is just and convenient to do so, make a forced marriage protection 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 deciding whether to exercise its powers under subsection (1), the court must have regard to all the circumstances including—

• (a) any risk of significant harm to the person to be protected or another person if the order is not made immediately;

• (b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately; and

• (c) whether there is reason to believe that—

• (i) the respondent is aware of the proceedings but is deliberately evading service; and

• (ii) the delay involved in effecting substituted service will cause serious prejudice to the person to be protected or (if a different person) an applicant.

• (3) The court must give the respondent an opportunity to make representations about any order made by virtue of subsection (1).

• (4) The opportunity must be—

• (a) as soon as just and convenient; and

• (b) at a hearing of which notice has been given to all the parties in accordance with rules of court.

63E

• (1) In any case where the court has power to make a forced marriage protection order, the court may accept an undertaking from the respondent instead of making the order.

• (2) But a court may not accept an undertaking under subsection (1) if it appears to the court—

• (a) that the respondent has used or threatened violence against the person to be protected, and

• (b) that, for the person's protection, it is necessary to make a forced marriage protection order so that any breach of it by the respondent may be punishable under section 63CA.

• (4) An undertaking given to the court under subsection (1) is enforceable as if the court had made the order in terms corresponding to those of the undertaking.

• (5) This section is without prejudice to the powers of the court apart from this section.

63F

A forced marriage protection order may be made for a specified period or until varied or discharged.

63G

• (1) The court may vary or discharge a forced marriage protection order on an application by—

• (a) any party to the proceedings for the order;

• (b) the person being protected by the order (if not a party to the proceedings for the order); or

• (c) any person affected by the order.

• (2) In addition, the court may vary or discharge a forced marriage protection order made by virtue of section 63C(1)(b) even though no application under subsection (1) above has been made to the court.

• (3) Section 63D applies to a variation of a forced marriage protection order as it applies to the making of such an order.

• (4) Section 63E applies to proceedings for a variation of a forced marriage protection order as it applies to proceedings for the making of such an order.

• (5) Accordingly, references in sections 63D and 63E to making a forced marriage protection order are to be read for the purposes of subsections (3) and (4) above as references to varying such an order.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Arrest for breach of orders

63H

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

63I

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

63J

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

• (2) An interested party may apply to the relevant judge for the issue of a warrant for the arrest of a person if the interested party considers that the person has failed to comply with a forced marriage protection order or is otherwise in contempt of court in relation to the order.

• (3) The relevant judge must not issue a warrant on an application under subsection (2) unless—

• (a) the application is substantiated on oath; and

• (b) the relevant judge has reasonable grounds for believing that the person to be arrested has failed to comply with the order or is otherwise in contempt of court in relation to the order.

• (4) In this section “interested party”, in relation to a forced marriage protection order, means—

• (a) the person being protected by the order;

• (b) (if a different person) the person who applied for the order; or

• (c) any other person;

but no application may be made under subsection (2) by a person falling within paragraph (c) without the leave of the relevant judge.

63K

• (1) The court before which an arrested person is brought ... by virtue of a warrant issued under section 63J may, if the matter is not then disposed of immediately, remand the person concerned.

• (2) Schedule 5 has effect in relation to the powers of the court to remand a person by virtue of this section but as if the following modifications were made to the Schedule.

• (3) The modifications are that—

• (a) in paragraph 2(1) of Schedule 5, the reference to section 47 is to be read as a reference to this section; and

• (b) in paragraph 2(5)(b) of the Schedule, the reference to section 48(1) is to be read as a reference to section 63L(1).

• (4) Subsection (5) applies if a person remanded under this section is granted bail under Schedule 5 as modified above.

• (5) The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the relevant judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.

63L

• (1) Any power to remand a person under section 63K(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required.

• (2) If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judge remands the accused in custody.

• (3) If the relevant judge remands the accused in custody, the adjournment must not be for more than 3 weeks at a time.

• (4) Subsection (5) applies if there is reason to suspect that a person who has been arrested—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) under a warrant issued on an application made under section 63J(2);

is suffering from mental disorder within the meaning of the Mental Health Act 1983.

• (5) The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (c. 20) (remand for report on accused's mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section.

Jurisdiction and procedure

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

63M

• (1) For the purposes of this Part “the court” means the High Court or the family court.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

63N

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

Contempt proceedings: Part 4A

63O

The powers of the court in relation to contempt of court arising out of a person's failure to comply with a forced marriage protection order or otherwise in connection with such an order may be exercised by the relevant judge.

63P

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

Supplementary

63Q

• (1) The Secretary of State may from time to time prepare and publish guidance to such descriptions of persons as the Secretary of State considers appropriate about—

• (a) the effect of this Part or any provision of this Part; or

• (b) other matters relating to forced marriages.

• (2) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.

• (3) Nothing in this section permits the Secretary of State to give guidance to any court or tribunal.

63R

• (1) This Part does not affect any other protection or assistance available to a person who—

• (a) is being, or may be, forced into a marriage or subjected to an attempt to be forced into a marriage; or

• (b) has been forced into a marriage.

• (2) In particular, it does not affect—

• (a) the inherent jurisdiction of the High Court;

• (b) any criminal liability;

• (c) any civil remedies under the Protection from Harassment Act 1997 (c. 40);

• (d) any right to an occupation order or a non-molestation order under Part 4 of this Act;

• (e) any protection or assistance under the Children Act 1989 (c. 41);

• (f) any claim in tort; or

• (g) the law of marriage.

63S

In this Part—

• “the court” is to be read with section 63M;

• “force” (and related expressions), in relation to a marriage, are to be read in accordance with section 63A(4) to (6);

• “forced marriage protection order” has the meaning given by section 63A(6);

• “marriage” means any religious or civil ceremony of marriage (whether or not legally binding); and

• “the relevant judge”, in relation to any order under this Part, means— where the order was made by the High Court, a judge of that court; andwhere the order was made by the family court, a judge of that court.

Neither cohabitant or former cohabitant entitled to occupy.

Pension sharing orders: divorce and nullity

6A

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

11A

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

16A

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

25A

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

The Welfare Reform and Pensions Act 1999

43A

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

Editorial notes

[^c12122071]: Act partly in force at Royal Assent see s. 67.

[^c12122081]: Act modified (1.10.1997) by 1986 c. 45, s. 337(3) (as amended (1.10.1997) by 1996 c. 27, s. 66(1), Sch. 8 Pt. III para. 58(3) (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)

[^c12122261]: S. 16 repealed (1.12.2000) by 1999 c. 30, s. 88, Sch. 13 Pt. II; S.I. 2000/1116, art. 2(g)

[^c12122281]: S. 17 repealed (6.4.2002) by 1999 c. 30, s. 88, Sch. 13 Pt. II; S.I. 2001/4049, art. 2(3)(c)

[^c20993411]: S. 22: functions transferred (12.1.2004) by The Transfer of Functions (Children, Young People and Families) Order 2003 (S.I. 2003/3191), arts. 3, 4

[^c20993431]: Words in s. 22 substituted (12.1.2004) by The Transfer of Functions (Children, Young People and Families) Order 2003 (S.I. 2003/3191), art. 6, Sch. para. 2

[^c12122401]: Pt. III (ss. 26-29) repealed (1.4.2000) by 1999 c. 22, s. 106, Sch. 15 Pt. I (with Sch. 14 para. 7(2), 36(9)); S.I. 2000/774, art. 2(c), Sch.

[^c20996821]: Words in s. 30 heading substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(11); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994631]: Words in s. 30(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(2)(a)(i); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994791]: Words in s. 30(1)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(2)(a)(ii); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994831]: Words in s. 30(1)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(2)(b); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994871]: Words in s. 30(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(3)(a); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994901]: Words in s. 30(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(3)(b); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994921]: Words in s. 30(2)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(3)(c); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994941]: Words in s. 30(3) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(4)(a); S.I. 2005/3175, art. 2(1), Sch. 1

[^c20994971]: Words in s. 30(3) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 1(1)(4)(b); S.I. 2005/3175, art. 2(1), Sch. 1