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Status: This version of this part contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Family Law Act 1996. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes
Family Law Act 1996
1996 CHAPTER 27
PART IV
FAMILY HOMES AND DOMESTIC VIOLENCE
Modifications etc. (not altering text)
C1 Pt. 4 modified (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 25(2) ; S.I. 2005/3175, art. 2(1) , Sch. 1
Rights to occupy matrimonial [F1 or civil partnership ] home
Textual Amendments
F1 Words in cross-heading preceding s. 30 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
30 Rights concerning [F2home where one spouse or civil partner] has no estate, etc.
(1) This section applies if—
(a) one spouse [F3^ 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 [F4 A ] the right to remain in occupation; and
(b) the other spouse [F5^ or civil partner (“B”) ] is not so entitled.
(2) Subject to the provisions of this Part, [F6 B ] has the following rights ( [F7 “home rights” ] )
(a) if in occupation, a right not to be evicted or excluded from the dwelling-house
or any part of it by [F8 A ] except with the leave of the court given by an order
under section 33;
Part IV – Family Homes and Domestic Violence Document Generated: 2022-05- Status: This version of this part contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Family Law Act 1996. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes
(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 [F9 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 [F9 B ] in or
towards satisfaction of any liability of [F10 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 [F10 A ].
(4) [F11 B's ] occupation by virtue of this section—
(a) is to be treated, for the purposes of the M1 Rent (Agriculture) Act 1976 and the
M2 Rent Act 1977 (other than Part V and sections 103 to 106 of that Act), as
occupation [F12 by A as A's ] residence, and
(b) if [F13 B occupies the dwelling-house as B's ] only or principal home, is to be
treated, for the purposes of the M3 Housing Act 1985 [F14 , Part I of the Housing
Act 1988 [F15 , Chapter 1 of Part 5 of the Housing Act 1996 and the Prevention
of Social Housing Fraud Act 2013 ]] , as occupation [F16 by A as A's ] only or
principal home.
(5) If [F17 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 [F18 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 [F19 A ] ,
but the fact that that person has treated any such payment as having been so made
does not affect any claim of [F20 B against A ] to an interest in the dwelling-house by
virtue of the payment.
(6) If [F21 B ] is entitled under this section to occupy a dwelling-house or part of a dwelling-
house by reason of an interest of [F22 A ] under a trust, all the provisions of subsections
(3) to (5) apply in relation to the trustees as they apply in relation to [F22 A ].
(7) This section does not apply to a dwelling-house [F23^ 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) [F24 B’s home rights ] continue—
(a) only so long as the marriage [F25 or civil partnership ] subsists, except to the
extent that an order under section 33(5) otherwise provides; and
(b) only so long as [F26 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 [F27 a person ] —
(a) who has an equitable interest in a dwelling-house or in its proceeds of sale, but
(b) is not [F27 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 [F28 home rights ] ,
as not being entitled to occupy the dwelling-house by virtue of that interest.
Part IV – Family Homes and Domestic Violence Document Generated: 2022-05- Status: This version of this part contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Family Law Act 1996. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes F27 Words in s. 30(9) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 1(1)(10)(a) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F28 Words in s. 30(9) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 1(1)(10)(b) ; S.I. 2005/3175, art. 2(1) , Sch. 1
Marginal Citations
M1 1976 c. 80. M2 1977 c. 42. M3 1985 c. 68.
31 Effect of [F29home rights] as charge on dwelling-house.
(1) Subsections (2) and (3) apply if, at any time during a [F30 marriage or civil partnership,
A ] is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest.
(2) [F31 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 [F32 A ] acquires the estate or interest;
(b) the date of the marriage [F33 or of the formation of the civil partnership ] ; and
(c) 1st January 1968 (the commencement date of the M4 Matrimonial Homes Act
(4) Subsections (5) and (6) apply if, at any time when [F34 B’s home rights ] are a charge on
an interest of [F35 A ] under a trust, there are, apart from [F36 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 [F37 A ].
(6) The charge created by subsection (5) has the same priority as if it were an equitable
interest created (under powers overriding the trusts) on the date when it arises.
(7) In determining for the purposes of subsection (4) whether there are any persons who
are not, but could become, beneficiaries under the trust, there is to be disregarded any
potential exercise of a general power of appointment exercisable by either or both of
[F38 A and B ] alone (whether or not the exercise of it requires the consent of another
person).
(8) Even though [F39 B’s home rights ] are a charge on an estate or interest in the dwelling-
house, those rights are brought to an end by—
(a) the death of [F40 A ] , or
(b) the termination (otherwise than by death) of the marriage [F41 or civil
partnership ] ,
unless the court directs otherwise by an order made under section 33(5).
(9) If—
(a) [F42 B’s home rights ] are a charge on an estate or interest in the dwelling-house,
and
(b) that estate or interest is surrendered to merge in some other estate or interest
expectant on it in such circumstances that, but for the merger, the person taking
the estate or interest would be bound by the charge,
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the surrender has effect subject to the charge and the persons thereafter entitled to the
other estate or interest are, for so long as the estate or interest surrendered would have
endured if not so surrendered, to be treated for all purposes of this Part as deriving title
to the other estate or interest under [F43 A ] or, as the case may be, under the trustees
for [F43 A ] , by virtue of the surrender.
(10) If the title to the legal estate by virtue of which [F44 A ] is entitled to occupy a dwelling-
house (including any legal estate held by trustees for [F44 A ] ) is registered under the
[F45 Land Registration Act 2002 ] or any enactment replaced by that Act—
(a) registration of a land charge affecting the dwelling-house by virtue of this Part
is to be effected by registering a notice under that Act; and
[F46 (b) [F47 B’s home rights ] are not to be capable of falling within paragraph 2 of
Schedule 1 or 3 to that Act. ]
(11) F................................
(12) If—
[F49 (a) B’s home rights are a charge on the estate of A or of trustees of A, and ]
(b) that estate is the subject of a mortgage,
then if, after the date of the creation of the mortgage ( “the first mortgage”), the charge
is registered under section 2 of the M5 Land Charges Act 1972, the charge is, for the
purposes of section 94 of the M6 Law of Property Act 1925 (which regulates the rights
of mortgagees to make further advances ranking in priority to subsequent mortgages),
to be deemed to be a mortgage subsequent in date to the first mortgage.
(13) It is hereby declared that a charge under subsection (2) or (5) is not registrable under
subsection (10) or under section 2 of the Land Charges Act 1972 unless it is a charge
on a legal estate.
Textual Amendments
F29 Words in s. 31 heading substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(12) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F30 Words in s. 31(1) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(2) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F31 Words in s. 31(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(3) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F32 Words in s. 31(3)(a) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(4)(a) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F33 Words in s. 31(3)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(4)(b) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F34 Words in s. 31(4) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(5)(a) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F35 Words in s. 31(4) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(5)(b) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F36 Words in s. 31(4) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(5)(c) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F37 Words in s. 31(5) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(6) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F38 Words in s. 31(7) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(7) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F39 Words in s. 31(8) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 2(1)(8)(a) ; S.I. 2005/3175, art. 2(1) , Sch. 1
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(b) the dwelling-house—
(i) is or at any time has been the home of the person entitled and of
another person with whom he is associated, or
(ii) was at any time intended by the person entitled and any such other
person to be their home,
the person entitled may apply to the court for an order containing any of the
provisions specified in subsections (3), (4) and (5).
(2) If an agreement to marry is terminated, no application under this section may be made
by virtue of section 62(3)(e) by reference to that agreement after the end of the period
of three years beginning with the day on which it is terminated.
[F53 (2A) If a civil partnership agreement (as defined by section 73 of the Civil Partnership
Act 2004) is terminated, no application under this section may be made by virtue of
section 62(3)(eza) by reference to that agreement after the end of the period of three
years beginning with the day on which it is terminated. ]
(3) An order under this section may—
(a) enforce the applicant’s entitlement to remain in occupation as against the other
person ( “the respondent”);
(b) require the respondent to permit the applicant to enter and remain in the
dwelling-house or part of the dwelling-house;
(c) regulate the occupation of the dwelling-house by either or both parties;
(d) if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit,
suspend or restrict the exercise by him of his right to occupy the dwelling-
house;
(e) if the respondent has [F54 home rights ] in relation to the dwelling-house and the
applicant is the other spouse [F55 or civil partner ] , restrict or terminate those
rights;
(f) require the respondent to leave the dwelling-house or part of the dwelling-
house; or
(g) exclude the respondent from a defined area in which the dwelling-house is
included.
(4) An order under this section may declare that the applicant is entitled as mentioned in
subsection (1)(a)(i) or has [F56 home rights ].
(5) If the applicant has [F57 home rights ] and the respondent is the other spouse [F58 or civil
partner ] , an order under this section made during the marriage [F59 or civil partnership ]
may provide that those rights are not brought to an end by—
(a) the death of the other spouse [F60 or civil partner ] ; or
(b) the termination (otherwise than by death) of the marriage [F61 or civil
partnership ].
(6) In deciding whether to exercise its powers under subsection (3) and (if so) in what
manner, the court shall have regard to all the circumstances including—
(a) the housing needs and housing resources of each of the parties and of any
relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its
powers under subsection (3), on the health, safety or well-being of the parties
and of any relevant child; and
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(d) the conduct of the parties in relation to each other and otherwise.
(7) If it appears to the court that the applicant or any relevant child is likely to suffer
significant harm attributable to conduct of the respondent if an order under this section
containing one or more of the provisions mentioned in subsection (3) is not made, the
court shall make the order unless it appears to it that—
(a) the respondent or any relevant child is likely to suffer significant harm if the
order is made; and
(b) the harm likely to be suffered by the respondent or child in that event is as
great as, or greater than, the harm attributable to conduct of the respondent
which is likely to be suffered by the applicant or child if the order is not made.
(8) The court may exercise its powers under subsection (5) in any case where it considers
that in all the circumstances it is just and reasonable to do so.
(9) An order under this section—
(a) may not be made after the death of either of the parties mentioned in
subsection (1); and
(b) except in the case of an order made by virtue of subsection (5)(a), ceases to
have effect on the death of either party.
(10) An order under this section may, in so far as it has continuing effect, be made for a
specified period, until the occurrence of a specified event or until further order.
Textual Amendments
F51 Words in s. 33 heading substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(7) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F52 Words in s. 33(1)(a)(ii) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(2) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F53 S. 33(2A) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(3) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F54 Words in s. 33(3)(e) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(4)(a) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F55 Words in s. 33(3)(e) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(4)(b) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F56 Words in s. 33(4) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(5) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F57 Words in s. 33(5) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(6)(a) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F58 Words in s. 33(5) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(6)(b) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F59 Words in s. 33(5) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(6)(c) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F60 Words in s. 33(5)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(6)(d) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F61 Words in s. 33(5)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 4(1)(6)(e) ; S.I. 2005/3175, art. 2(1) , Sch. 1
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(5) An order under this section may also—
(a) regulate the occupation of the dwelling-house by either or both of the parties;
(b) prohibit, suspend or restrict the exercise by the respondent of his right to
occupy the dwelling-house;
(c) require the respondent to leave the dwelling-house or part of the dwelling-
house; or
(d) exclude the respondent from a defined area in which the dwelling-house is
included.
(6) In deciding whether to make an order under this section containing provision of the
kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have
regard to all the circumstances including—
(a) the housing needs and housing resources of each of the parties and of any
relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise
its powers under subsection (3) or (4), on the health, safety or well-being of
the parties and of any relevant child;
(d) the conduct of the parties in relation to each other and otherwise;
(e) the length of time that has elapsed since the parties ceased to live together;
(f) the length of time that has elapsed since the marriage [F69 or civil partnership ]
was dissolved or annulled; and
(g) the existence of any pending proceedings between the parties—
(i) for an order under section 23A or 24 of the M7 Matrimonial Causes
Act 1973 (property adjustment orders in connection with divorce
proceedings etc.);
[F70 (ia) for a property adjustment order under Part 2 of Schedule 5 to the Civil
Partnership Act 2004; ]
(ii) for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the
M8 Children Act 1989 (orders for financial relief against parents); or
(iii) relating to the legal or beneficial ownership of the dwelling-house.
(7) In deciding whether to exercise its power to include one or more of the provisions
referred to in subsection (5) ( “a subsection (5) provision”) and (if so) in what manner,
the court shall have regard to all the circumstances including the matters mentioned
in subsection (6)(a) to (e).
(8) If the court decides to make an order under this section and it appears to it that, if
the order does not include a subsection (5) provision, the applicant or any relevant
child is likely to suffer significant harm attributable to conduct of the respondent, the
court shall include the subsection (5) provision in the order unless it appears to the
court that—
(a) the respondent or any relevant child is likely to suffer significant harm if the
provision is included in the order; and
(b) the harm likely to be suffered by the respondent or child in that event is as great
as or greater than the harm attributable to conduct of the respondent which is
likely to be suffered by the applicant or child if the provision is not included.
(9) An order under this section—
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(a) may not be made after the death of either of the former spouses [F71 or former
civil partners ] ; and
(b) ceases to have effect on the death of either of them.
(10) An order under this section must be limited so as to have effect for a specified period
not exceeding six months, but may be extended on one or more occasions for a further
specified period not exceeding six months.
(11) A former spouse [F72 or former civil partner ] who has an equitable interest in the
dwelling-house or in the proceeds of sale of the dwelling-house but in whom there is
not vested (whether solely or as joint tenant) a legal estate in fee simple or a legal term
of years absolute in the dwelling-house is to be treated (but only for the purpose of
determining whether he is eligible to apply under this section) as not being entitled to
occupy the dwelling-house by virtue of that interest.
(12) Subsection (11) does not prejudice any right of such a former spouse [F73 or former
civil partner ] to apply for an order under section 33.
(13) So long as an order under this section remains in force, subsections (3) to (6) of
section 30 apply in relation to the applicant—
[F74 (a) as if he were B (the person entitled to occupy the dwelling-house by virtue
of that section); and
(b) as if the respondent were A (the person entitled as mentioned in subsection (1)
(a) of that section). ]
Textual Amendments
F64 Words in s. 35 heading inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(10) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F65 Words in s. 35(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(2) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F66 Words in s. 35(1)(b) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(2) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F67 S. 35(1)(c) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1) (3) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F68 Words in s. 35(2) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(4) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F69 Words in s. 35(6)(f) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(5) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F70 S. 35(6)(g)(ia) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(6) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F71 Words in s. 35(9)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(7) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F72 Words in s. 35(11) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(8) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F73 Words in s. 35(12) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(8) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F74 S. 35(13)(a)(b) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 6(1)(9) ; S.I. 2005/3175, art. 2(1) , Sch. 1
Marginal Citations
M7 (^) 1973 c. 18. M8 (^) 1989 c. 41.
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(i) the existence of any pending proceedings between the parties—
(i) for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the
M9 Children Act 1989 (orders for financial relief against parents); or
(ii) relating to the legal or beneficial ownership of the dwelling-house.
(7) In deciding whether to exercise its powers to include one or more of the provisions
referred to in subsection (5) ( “a subsection (5) provision”) and (if so) in what manner,
the court shall have regard to all the circumstances including—
(a) the matters mentioned in subsection (6)(a) to (d); and
(b) the questions mentioned in subsection (8).
(8) The questions are—
(a) whether the applicant or any relevant child is likely to suffer significant harm
attributable to conduct of the respondent if the subsection (5) provision is not
included in the order; and
(b) whether the harm likely to be suffered by the respondent or child if the
provision is included is as great as or greater than the harm attributable to
conduct of the respondent which is likely to be suffered by the applicant or
child if the provision is not included.
(9) An order under this section—
(a) may not be made after the death of either of the parties; and
(b) ceases to have effect on the death of either of them.
(10) An order under this section must be limited so as to have effect for a specified period
not exceeding six months, but may be extended on one occasion for a further specified
period not exceeding six months.
(11) A person who has an equitable interest in the dwelling-house or in the proceeds of
sale of the dwelling-house but in whom there is not vested (whether solely or as joint
tenant) a legal estate in fee simple or a legal term of years absolute in the dwelling-
house is to be treated (but only for the purpose of determining whether he is eligible to
apply under this section) as not being entitled to occupy the dwelling-house by virtue
of that interest.
(12) Subsection (11) does not prejudice any right of such a person to apply for an order
under section 33.
(13) So long as the order remains in force, subsections (3) to (6) of section 30 apply in
relation to the applicant—
[F78 (a) as if he were B (the person entitled to occupy the dwelling-house by virtue
of that section); and
(b) as if the respondent were A (the person entitled as mentioned in subsection (1)
(a) of that section). ]
Textual Amendments
F75 Words in s. 36(1)(c) substituted (5.12.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60 , Sch. 10 para. 34(2) ; S.I. 2005/3196, art. 2(c) F76 Words in s. 36(6)(e) inserted (5.12.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 2(2) , 60 ; S.I. 2005/3196, art. 2(a) F77 Word in s. 36(6)(f) substituted (5.12.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60 , Sch. 10 para. 34(3) ; S.I. 2005/3196, art. 2(c)
Part IV – Family Homes and Domestic Violence Document Generated: 2022-05- Status: This version of this part contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Family Law Act 1996. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes F78 S. 36(13)(a)(b) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 7 ; S.I. 2005/3175, art. 2(1) , Sch. 1
Marginal Citations
M9 1989 c. 41.
37 Neither spouse [F79or civil partner] entitled to occupy.
(1) This section applies if—
(a) one spouse or former spouse and the other spouse or former spouse occupy a
dwelling-house which is or was the matrimonial home; but
(b) neither of them is entitled to remain in occupation—
(i) by virtue of a beneficial estate or interest or contract; or
(ii) by virtue of any enactment giving him the right to remain in
occupation.
[F80 (1A) This section also applies if—
(a) one civil partner or former civil partner and the other civil partner or former
civil partner occupy a dwelling-house which is or was the civil partnership
home; but
(b) neither of them is entitled to remain in occupation—
(i) by virtue of a beneficial estate or interest or contract; or
(ii) by virtue of any enactment giving him the right to remain in
occupation. ]
(2) Either of the parties may apply to the court for an order against the other under this
section.
(3) An order under this section may—
(a) require the respondent to permit the applicant to enter and remain in the
dwelling-house or part of the dwelling-house;
(b) regulate the occupation of the dwelling-house by either or both of the
[F81 parties ] ;
(c) require the respondent to leave the dwelling-house or part of the dwelling-
house; or
(d) exclude the respondent from a defined area in which the dwelling-house is
included.
(4) Subsections (6) and (7) of section 33 apply to the exercise by the court of its powers
under this section as they apply to the exercise by the court of its powers under
subsection (3) of that section.
(5) An order under this section must be limited so as to have effect for a specified period
not exceeding six months, but may be extended on one or more occasions for a further
specified period not exceeding six months.
Textual Amendments
F79 Words in s. 37 heading inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 8(4) ; S.I. 2005/3175, art. 2(1) , Sch. 1
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(6) An order under this section shall be limited so as to have effect for a specified period
not exceeding six months, but may be extended on one occasion for a further specified
period not exceeding six months.
Textual Amendments
F82 Words in s. 38(1)(a) substituted (5.12.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60 , Sch. 10 para. 35 ; S.I. 2005/3196, art. 2(c)
39 Supplementary provisions.
(1) In this Part an “occupation order” means an order under section 33, 35, 36, 37 or 38.
(2) An application for an occupation order may be made in other family proceedings or
without any other family proceedings being instituted.
(3) If—
(a) an application for an occupation order is made under section 33, 35, 36, 37
or 38, and
(b) the court considers that it has no power to make the order under the section
concerned, but that it has power to make an order under one of the other
sections,
the court may make an order under that other section.
(4) The fact that a person has applied for an occupation order under sections 35 to 38,
or that an occupation order has been made, does not affect the right of any person
to claim a legal or equitable interest in any property in any subsequent proceedings
(including subsequent proceedings under this Part).
40 Additional provisions that may be included in certain occupation orders.
(1) The court may on, or at any time after, making an occupation order under section 33,
35 or 36—
(a) impose on either party obligations as to—
(i) the repair and maintenance of the dwelling-house; or
(ii) the discharge of rent, mortgage payments or other outgoings affecting
the dwelling-house;
(b) order a party occupying the dwelling-house or any part of it (including a party
who is entitled to do so by virtue of a beneficial estate or interest or contract
or by virtue of any enactment giving him the right to remain in occupation) to
make periodical payments to the other party in respect of the accommodation,
if the other party would (but for the order) be entitled to occupy the dwelling-
house by virtue of a beneficial estate or interest or contract or by virtue of any
such enactment;
(c) grant either party possession or use of furniture or other contents of the
dwelling-house;
(d) order either party to take reasonable care of any furniture or other contents
of the dwelling-house;
(e) order either party to take reasonable steps to keep the dwelling-house and any
furniture or other contents secure.
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(2) In deciding whether and, if so, how to exercise its powers under this section, the court
shall have regard to all the circumstances of the case including—
(a) the financial needs and financial resources of the parties; and
(b) the financial obligations which they have, or are likely to have in the
foreseeable future, including financial obligations to each other and to any
relevant child.
(3) An order under this section ceases to have effect when the occupation order to which
it relates ceases to have effect.
41 Additional considerations if parties are cohabitants or former cohabitants.
F................................
Textual Amendments
F83 S. 41 repealed (5.12.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 2(1), 58(2), 60 , Sch. 11 ; S.I. 2005/3196, art. 2(a)(d)
Non-molestation orders
42 Non-molestation orders.
(1) In this Part a “non-molestation order” means an order containing either or both of the
following provisions—
(a) provision prohibiting a person ( “the respondent”) from molesting another
person who is associated with the respondent;
(b) provision prohibiting the respondent from molesting a relevant child.
(2) The court may make a non-molestation order—
(a) if an application for the order has been made (whether in other family
proceedings or without any other family proceedings being instituted) by a
person who is associated with the respondent; or
(b) if in any family proceedings to which the respondent is a party the court
considers that the order should be made for the benefit of any other party to
the proceedings or any relevant child even though no such application has
been made.
(3) In subsection (2) “family proceedings” includes proceedings in which the court has
made an emergency protection order under section 44 of the M10 Children Act 1989
which includes an exclusion requirement (as defined in section 44A(3) of that Act).
(4) Where an agreement to marry is terminated, no application under subsection (2)(a)
may be made by virtue of section 62(3)(e) by reference to that agreement after the end
of the period of three years beginning with the day on which it is terminated.
[F84 (4A) A court considering whether to make an occupation order shall also consider whether
to exercise the power conferred by subsection (2)(b).
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(b) on summary conviction, to imprisonment for a term not exceeding 12 months,
or a fine not exceeding the statutory maximum, or both.
(6) A reference in any enactment to proceedings under this Part, or to an order under this
Part, does not include a reference to proceedings for an offence under this section or
to an order made in such proceedings.
“Enactment” includes an enactment contained in subordinate legislation within the
meaning of the Interpretation Act 1978 (c. 30). ]
Textual Amendments
F87 S. 42A inserted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 1 , 60 (with transitional provisions in Sch. 12 para. 1); S.I. 2007/1845, art. 2(a) (with art. 3)
Further provisions relating to occupation and non-molestation orders
43 Leave of court required for applications by children under sixteen.
(1) A child under the age of sixteen may not apply for an occupation order or a non-
molestation order except with the leave of the court.
(2) The court may grant leave for the purposes of subsection (1) only if it is satisfied
that the child has sufficient understanding to make the proposed application for the
occupation order or non-molestation order.
44 Evidence of agreement to marry [F88or form a civil partnership].
(1) Subject to subsection (2), the court shall not make an order under section 33 or 42
by virtue of section 62(3)(e) unless there is produced to it evidence in writing of the
existence of the agreement to marry.
(2) Subsection (1) does not apply if the court is satisfied that the agreement to marry was
evidenced by—
(a) the gift of an engagement ring by one party to the agreement to the other in
contemplation of their marriage, or
(b) a ceremony entered into by the parties in the presence of one or more other
persons assembled for the purpose of witnessing the ceremony.
[F89 (3) Subject to subsection (4), the court shall not make an order under section 33 or 42
by virtue of section 62(3)(eza) unless there is produced to it evidence in writing of
the existence of the civil partnership agreement (as defined by section 73 of the Civil
Partnership Act 2004).
(4) Subsection (3) does not apply if the court is satisfied that the civil partnership
agreement was evidenced by—
(a) a gift by one party to the agreement to the other as a token of the agreement, or
(b) a ceremony entered into by the parties in the presence of one or more other
persons assembled for the purpose of witnessing the ceremony. ]
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Textual Amendments
F88 Words in s. 44 heading inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 10(2) ; S.I. 2005/3175, art. 2(1) , Sch. 1 F89 S. 44(3)(4) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263 , Sch. 9 para. 10(1) ; S.I. 2005/3175, art. 2(1) , Sch. 1
45 Ex parte orders.
(1) The court may, in any case where it considers that it is just and convenient to do so,
make an occupation order or a non-molestation order even though the respondent has
not been given such notice of the proceedings as would otherwise be required by rules
of court.
(2) In determining whether to exercise its powers under subsection (1), the court shall
have regard to all the circumstances including—
(a) any risk of significant harm to the applicant or a relevant child, attributable to
conduct of the respondent, if the order is not made immediately;
(b) whether it is likely that the applicant will be deterred or prevented from
pursuing the application if an order is not made immediately; and
(c) whether there is reason to believe that the respondent is aware of the
proceedings but is deliberately evading service and that the applicant or
a relevant child will be seriously prejudiced by the delay [F90 involved ] in
effecting substituted service.
(3) If the court makes an order by virtue of subsection (1) it must afford the respondent an
opportunity to make representations relating to the order as soon as just and convenient
at a full hearing.
(4) If, at a full hearing, the court makes an occupation order ( “the full order”), then—
(a) for the purposes of calculating the maximum period for which the full order
may be made to have effect, the relevant section is to apply as if the period
for which the full order will have effect began on the date on which the initial
order first had effect; and
(b) the provisions of section 36(10) or 38(6) as to the extension of orders are to
apply as if the full order and the initial order were a single order.
(5) In this section—
“full hearing” means a hearing of which notice has been given to all the
parties in accordance with rules of court;
“initial order” means an occupation order made by virtue of subsection (1);
and
“relevant section” means section 33(10), 35(10), 36(10), 37(5) or 38(6).
Textual Amendments
F90 Word in s. 45(2)(c) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 11 para. 130 ; S.I. 2014/954, art. 2(e) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)
