- Latest available (Revised)
- Point in Time (15/07/2011)
- Original (As enacted)
Version Superseded: 22/04/2014
Point in time view as at 15/07/2011.
Family Law Act 1996, Cross Heading: Further provisions relating to occupation and non-molestation orders is up to date with all changes known to be in force on or before 30 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Changes and effects yet to be applied by the editorial team are only applicable when viewing the latest version or prospective version of legislation. They are therefore not accessible when viewing legislation as at a specific point in time. To view the ‘Changes to Legislation’ information for this provision return to the latest version view using the options provided in the ‘What Version’ box above.
(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.
(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.
[F2(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.]
Textual Amendments
F1Words 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
F2S. 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
(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 involved—
(i)where the court is a magistrates’ court, in effecting service of proceedings; or
(ii)in any other case, 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).
(1)In any case where the court has power to make an occupation order or non-molestation order, the court may accept an undertaking from any party to the proceedings.
(2)No power of arrest may be attached to any undertaking given under subsection (1).
(3)The court shall not accept an undertaking under subsection (1) [F3instead of making an occupation order] in any case where apart from this section a power of arrest would be attached to the order.
[F4(3A)The court shall not accept an undertaking under subsection (1) instead of making a non-molestation order in any case where it appears to the court that—
(a)the respondent has used or threatened violence against the applicant or a relevant child; and
(b)for the protection of the applicant or child it is necessary to make a non-molestation order so that any breach may be punishable under section 42A.]
(4)An undertaking given to a court under subsection (1) is enforceable as if [F5the court had made an occupation order or a non-molestation order in terms corresponding to those of the undertaking].
(5)This section has effect without prejudice to the powers of the High Court and the county court apart from this section.
Textual Amendments
F3Words in s. 46(3) inserted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 37(2) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
F4S. 46(3A) inserted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 37(3) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
F5Words in s. 46(4) substituted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 37(4) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
(1)F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)If—
(a)the court makes [F7an occupation order]; and
(b)it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child,
it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.
(3)Subsection (2) does not apply in any case where [F8the occupation order] is made by virtue of section 45(1), but in such a case the court may attach a power of arrest to one or more provisions of the order if it appears to it—
(a)that the respondent has used or threatened violence against the applicant or a relevant child; and
(b)that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent, if the power of arrest is not attached to those provisions immediately.
(4)If, by virtue of subsection (3), the court attaches a power of arrest to any provisions of [F9an occupation order], it may provide that the power of arrest is to have effect for a shorter period than the other provisions of the order.
(5)Any period specified for the purposes of subsection (4) may be extended by the court (on one or more occasions) on an application to vary or discharge [F10the occupation order].
(6)If, by virtue of subsection (2) or (3), a power of arrest is attached to certain provisions of an order, a constable may arrest without warrant a person whom he has reasonable cause for suspecting to be in breach of any such provision.
(7)If a power of arrest is attached under subsection (2) or (3) to certain provisions of the order and the respondent is arrested under subsection (6)—
(a)he must be brought before the relevant judicial authority within the period of 24 hours beginning at the time of his arrest; and
(b)if the matter is not then disposed of forthwith, the relevant judicial authority before whom he is brought may remand him.
In reckoning for the purposes of this subsection any period of 24 hours, no account is to be taken of Christmas Day, Good Friday or any Sunday.
(8)[F11If the court—
(a)has made a non-molestation order, or
(b)has made an occupation order but has not attached a power of arrest under subsection (2) or (3) to any provision of the order, or has attached that power only to certain provisions of the order,]
then, if at any time the applicant considers that the respondent has failed to comply with the order, he may apply to the relevant judicial authority for the issue of a warrant for the arrest of the respondent.
(9)The relevant judicial authority shall not issue a warrant on an application under subsection (8) unless—
(a)the application is substantiated on oath; and
(b)the relevant judicial authority has reasonable grounds for believing that the respondent has failed to comply with the order.
(10)If a person is brought before a court by virtue of a warrant issued under subsection (9) and the court does not dispose of the matter forthwith, the court may remand him.
(11)Schedule 5 (which makes provision corresponding to that applying in magistrates’ courts in civil cases under sections 128 and 129 of the M1Magistrates’ Courts Act 1980) has effect in relation to the powers of the High Court and a county court to remand a person by virtue of this section.
(12)If a person remanded under this section is granted bail (whether in the High Court or a county court under Schedule 5 or in a magistrates’ court under section 128 or 129 of the Magistrates’ Courts Act 1980), he may be required by the relevant judicial authority to comply, before release on bail or later, with such requirements as appear to that authority to be necessary to secure that he does not interfere with witnesses or otherwise obstruct the course of justice.
Textual Amendments
F6S. 47(1) repealed (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1)(2), 60, Sch. 10 para. 38(2), Sch. 11 (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c)(d) (with art. 3)
F7Words in s. 47(2) substituted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 38(3) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
F8Words in s. 47(3) substituted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 38(4) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
F9Words in s. 47(4) substituted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 38(3) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
F10Words in s. 47(5) substituted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 38(4) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
F11Words in s. 47(8) substituted (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1), 60, Sch. 10 para. 38(5) (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c) (with art. 3)
Modifications etc. (not altering text)
C1S. 47(7) extended (1.10.1997) by 1989 c. 41, ss. 38A, 38B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 1 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
S. 47(7) extended (1.10.1997) by 1989 c. 41, ss. 44A, 44B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 3 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
C2S. 47(11) extended (1.10.1997) by 1989 c. 41, ss. 38A, 38B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 1 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
S. 47(11) extended (1.10.1997) by 1989 c. 41, ss. 44A, 44B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 3 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
C3S. 47(12) extended (1.10.1997) by 1989 c. 41, ss. 38A, 38B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 1 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
S. 47(12) extended (1.10.1997) by 1989 c. 41, ss. 44A, 44B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 3 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
Marginal Citations
(1)If the relevant judicial authority has reason to consider that a medical report will be required, any power to remand a person under section 47(7)(b) or (10) may be exercised for the purpose of enabling a medical examination and report to be made.
(2)If such a power is so exercised, the adjournment must not be for more than 4 weeks at a time unless the relevant judicial authority remands the accused in custody.
(3)If the relevant judicial authority so remands the accused, the adjournment must not be for more than 3 weeks at a time.
(4)If there is reason to suspect that a person who has been arrested—
(a)under section 47(6), or
(b)under a warrant issued on an application made under section 47(8),
is suffering from [F12mental disorder within the meaning of the Mental Health Act 1983], the relevant judicial authority has the same power to make an order under section 35 of [F13that Act](remand for report on accused’s mental condition) as the Crown Court has under [F14that section] in the case of an accused person within the meaning of that section.
Textual Amendments
F12Words in s. 48(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1(4), 56(1), Sch. 1 para. 20(2)(a); S.I. 2008/1900, arts. 1(1), 2(a) (with art. 3, Sch.)
F13Words in s. 48(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1(4), 56(1), Sch. 1 para. 20(2)(b); S.I. 2008/1900, arts. 1(1), 2(a) (with art. 3, Sch.)
F14Words in s. 48(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 1(4), 56(1), Sch. 1 para. 20(2)(c); S.I. 2008/1900, arts. 1(1), 2(a) (with art. 3, Sch.)
Modifications etc. (not altering text)
C4S. 48 extended (1.10.1997) by 1989 c. 41, ss. 38A, 38B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 1 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
S. 48 extended (1.10.1998) by 1989 c. 41, ss. 44A, 44B (as inserted (1.10.1997) by 1996 c. 27, s. 52, Sch. 6 para. 3 (with Sch. 9 paras. 8-10); S.I. 1997/1892, art. 3)
(1)An occupation order or non-molestation order may be varied or discharged by the court on an application by—
(a)the respondent, or
(b)the person on whose application the order was made.
(2)In the case of a non-molestation order made by virtue of section 42(2)(b), the order may be varied or discharged by the court even though no such application has been made.
(3)If [F15B’s home rights are, under section 31,] are a charge on the estate or interest of [F16A] or of trustees for [F16A], an order under section 33 against [F16A] may also be varied or discharged by the court on an application by any person deriving title under [F16A] or under the trustees and affected by the charge.
(4)If, by virtue of section 47(3), a power of arrest has been attached to certain provisions of an occupation order F17. . . , the court may vary or discharge the order under subsection (1) 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).
Textual Amendments
F15Words in s. 49(3) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 11(a); S.I. 2005/3175, art. 2(1), Sch. 1
F16Words in s. 49(3) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 82, 263, Sch. 9 para. 11(b); S.I. 2005/3175, art. 2(1), Sch. 1
F17Words in s. 49(4) repealed (1.7.2007) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 58(1)(2), 60, Sch. 10 para. 39, Sch. 11 (with Sch. 12 para. 1(11)); S.I. 2007/1845, art. 2(c)(d) (with art. 3)
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Point in Time: This becomes available after navigating to view revised legislation as it stood at a certain point in time via Advanced Features > Show Timeline of Changes or via a point in time advanced search.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: