The Family Law Act 1996 (c27) is an act passed by the UK Parliament that governs divorce laws and marriage. The act was introduced in an attempt to modernise divorce, moving slightly away from the fault-based approach of the Matrimonial Causes Act 1973. The principle part of the Act which deals with divorce didn’t proceed after the pilot schemes encountered difficulties with its application.
What is in the Family Law Act 1996?
The original Act was made up of five parts:
- Part I outlines the philosophical approach to divorce that underpinned the Act.
- Part II sets out the procedure for divorce, including innovations such as a preliminary Information Session and mediation as a first step.
- Part III is concerned with the provision of legal aid for mediation in family law and divorce.
- Part IV outlines principles and mechanisms related to family home, occupation orders, non-molestations orders, domestic violence orders and principles. Part IVA contains provisions related to forced marriage.
- Part V contains supplemental sections.
Part I of the Act sets out the philosophical approach to divorce.
Part II set out a procedure for divorce which required spouses seeking divorce to attend a preliminary Information Session and to seek mediation as a first step. Part II and related sections of other parts were repealed and partially replaced by section 18 of the Children and Families Act 2014 after they were abandoned in practice in 1999.
Part III of the act concerns provision of legal aid for mediation in family law and divorce.
Part IV set out the mechanisms and principles related to family homes (in particular Family Law Act Home Rights Notices affecting land), occupation orders, non-molestation orders and domestic violence orders and principles. Sections 30 and 31 concern the award of a statutory licence to occupy a home. Part IVA contains provisions related to forced marriage.
Part V contains supplemental sections.
What was the purpose of the Family Law Act 1996?
The aims of the Act were wide-ranging and ambitious. The Act sought to find a middle-ground between the fault-based older approach to divorce which it was argued led to delay, stigma and poor outcomes, and a purely no-fault approach. It did this through waiting periods and mediation.
The Act was conceived as an attempt to modernise the divorce process and is widely regarded as one of the most comprehensive and radical set of reforms of family law during the 20th century. It was passed by parliament in 1996, but because of the scale of the changes that it introduced it wasn’t expected to come into force until around 2000.
The Act marked a shift in the legal approach to divorce. This changed divorce from being a concrete event, to a procedure. It did this by attempting to meet two goals. Firstly, it was envisioned that the Act would give space for marriages to be saved. Secondly, when a divorce could not be saved, then it encouraged a peace-making, conciliatory approach to the process.
The Act came into being at a time when divorce rates had been rising, with concerns being raised that marriages which might be saved were being prematurely terminated. At the same time, the existing law relied on fault, encouraging hostility between the parties involved.
As a result, the existing law was deemed to offer the worst of both worlds. In some senses divorce was too easy, and to achieve a divorce required a focus on differences and polarisation. Particular concern was raised about the impact that this approach had on any children the divorcing couple might have.
The Act still centred on irretrievable breakdown as the sole ground for divorce but sought to provide a framework within which important issues could be resolved. There was to be an eleven month period of reflection and consideration, alongside an attempt at mediation.
This was designed to allow the parties the opportunity to eliminate any allegations of fault, managing and reducing hostility and while encouraging engagement over issues such as childcare and financial arrangements. The aim was to try to avoid the need for legal intervention over potentially problematic issues.
Why did the Family Law Act 1996 fail?
The Family Law Act 1996 essentially made provision for a ‘no-fault’ divorce provided couples took part in compulsory mediation. The government at the time was keen to find out how this might work in practice. As a result, the implementation of the main provisions of the act was delayed in order to carry out pilot schemes. These were designed to find the most effective means of carrying out information meetings and any mediation.
The results of the pilot scheme were not deemed to be satisfactory and in the face of mounting criticism from various pirates, some of the provisions of the Act, in particular Part II, were not implemented. This was because in practice they failed to meet the stated objectives of both saving marriages and helping divorcing couples to resolve issues without too much acrimony.
Lack of engagement by the parties was cited as one of the reasons why the pilot schemes failed, finding that couples were principally interested in moving towards divorce as quickly as they could in order to be able to move on with their lives. The philosophy behind the Act was criticised as presenting too idealised a version of both family life and the potential of divorce to lay the groundwork for an amicable ongoing relationship.
Another area that created difficulties was the concept of a ‘no-fault’ divorce which Part II of the Act would in effect have introduced. This would, it was believed, remove the potential for hostility that was built-in to the existing law, where evidence for irretrievable breakdown needed to be supported by facts relating to the behaviour of one of the parties.
While many of the pilot scheme participants stated that they supported the concept of no-fault divorce, some legal commentators argued that failure to recognise fault in instances where fault clearly existed would create a range of difficulties. If fault, where it existed, could not be referred to, it would create confusion and there is no other area of law where similar attempts are made to ignore blame and causation.
In some instances, lack of blame could be counterproductive when it comes to the future welfare of one of the parties and any children, such as when the marital breakdown has been caused by domestic violence. If the other party is to ensure their own safety through the provision of an occupation or non-molestation order, then establishing blame based on a pattern of behaviour may be a key requirement.
What is section 42 of the Family Law Act 1996?
Section 42 of the Family Law Act 1996 refers to a Non-Molestation Order. This will be applied in instances where domestic violence has been shown to have occurred. The order prohibits the respondent from molesting their partner or their children. It commonly states that a respondent must not:
- Use or threaten violence towards the applicant or any relevant children.
- Intimidate, harass or pester the applicant or any relevant children.
- Contact the applicant or any relevant children directly or indirectly.
- Damage, attempt to damage or threaten to damage the family home or any property that belongs to the applicant.
- Instruct or encourage another person to take any of the above actions.
A non-molestation order may also prohibit a respondent from being within a specified distance of a family home, other property, or a child’s school. If contact with the children is permitted, non-molestations orders may include a clause that allows the respondent to contact the applicant directly, or through solicitors to arrange contact.
What is section 33(5) of the Family Law Act 1996?
Parties to a divorce may have concerns about their rights regarding their place of residence, even if they do not own it. A spouse or civil partner’s right to occupation under the Family Law Act 1996, as amended by the Civil Partnership Act 2004, normally only allows for that right to continue during the subsistence of the marriage or civil partnership.
However, section 33(5) of the Family Law Act 1996, allows that in the event of a matrimonial dispute or estrangement, an order may be made by the court during the subsistence of the marriage or civil partnership that directs that these rights should continue, even if the marriage or civil partnership has come to an end.
Matrimonial Home Rights give protection to a husband, wife or civil partner under the Family Law Act 1996 where the matrimonial home is owned by one spouse but the other spouse has a right of occupation.
A Home Right notice will offer protection from a sale or other dealing of the property by a spouse. This means that should the property be owned by one spouse and the other spouse retains a right of occupation; this will need to be pointed out to any prospective purchasers.
A Home Right does not deem that a legal interest in the property exists, rather it adds a layer of extra protection while the details of the separation are negotiated.
A Home Right application is a relatively quick and easy process and should be considered by anyone who lives in a property as their matrimonial home, which they do not own. There are a number of ways in which the right of occupation can come to an end, including through voluntary relinquishment, the death of the spouse or civil partner or by court order.
A legal specialist can advise about the application process as well as the practical limitations of Home Rights.
What is a section 90 Family Law Act?
A Section 90 Family Law Act concerns legislation in Australia and isn’t pertinent to the UK Family Law Act 1996.
For further information and advice
The Family Law Act 1996 is a complex piece of legislation governing divorce, separation and subsequent rights and responsibilities. Luckily, you do not need to have an encyclopedic knowledge of the legislation if you are involved in divorce proceedings.
If you are thinking of getting divorced or have been served with a divorce petition, our divorce lawyers can provide expert legal advice to help protect your financial position and ensure a fair settlement.
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