- Y Diweddaraf sydd Ar Gael (Diwygiedig)
- Gwreiddiol (a wnaed Fel)
Family Homes and Domestic Violence (Northern Ireland) Order 1998 is up to date with all changes known to be in force on or before 19 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.
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Whole provisions yet to be inserted into this Order (including any effects on those provisions):
Article 17(5).
1. An occupation order ( “the order”) to the extent that by virtue of Article 11(3)(j), 13(5)(g) or 14(5)(g) it makes provision restraining the respondent from making a disposition of any land in Northern Ireland which is specified in the order,—N.I.
(a)shall create on the land a statutory charge within the meaning of section 87 of the [1970 c. 18 (N.I.).] Land Registration Act (Northern Ireland) 1970 (matters registrable in the Statutory Charges Register); and
(b)subject to section 88 of that Act (statutory charge to be void against purchaser in certain circumstances), shall render liable to be set aside by the court, at the instance of the applicant for the order, any disposition of the land in contravention of the order.
2.—(1) The registration of a statutory charge such as is mentioned in paragraph 1 shall cease to have effect when the provision mentioned in that paragraph ceases to have effect.N.I.
(2) This paragraph is without prejudice to section 91 of the Land Registration Act (Northern Ireland) 1970.
3. When the registration has ceased to have effect the Registrar of Titles may cancel it.N.I.
4. An application for the renewal of the registration of a charge may be made in the same manner as the application for the original registration.N.I.
Article 30.
1.—(1) In this Schedule the following words and expressions have the same meaning as in the [1978 NI 20.] Rent (Northern Ireland) Order 1978—N.I.
(a)dwelling-house;
(b)the landlord;
(c)protected tenancy;
(d)Rent Restriction Acts;
(e)statutory tenancy.
(2) In this Schedule—
[F1“civil partner”, except in paragraph 2, includes (where the context requires) former civil partner;]
“cohabitee”, except in paragraph 3, includes (where the context requires) former cohabitee;
“the court” does not include a court of summary jurisdiction;
“Part II order” means an order under Part II of this Schedule;
“secure tenancy” has the meaning assigned to it by Article 25 of the [1983 NI 15.] Housing (Northern Ireland) Order 1983;
“spouse” includes a party to a void or voidable marriage and, except in paragraph 2, includes (where the context requires) former spouse.
2.—(1) This paragraph applies if one spouse[F2 or civil partner] is entitled, either in his own right or jointly with the other spouse[F2 or civil partner], to occupy a dwelling-house by virtue of a protected tenancy, a statutory tenancy or a secure tenancy.N.I.
[F2(2) The court may make a Part II order—
(a)on granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or nullity of marriage, before or after the decree is made absolute), or
(b)at any time when it has power to make a property adjustment order under Part 2 of Schedule 15 to the Civil Partnership Act 2004 with respect to the civil partnership.]
(3) On the application of the other spouse[F2 or civil partner] within three months after an occupation order is made, the court may make a Part II order.
3.—(1) This paragraph applies if one cohabitee is entitled, either in his own right or jointly with the other cohabitee, to occupy a dwelling-house by virtue of a protected tenancy, a statutory tenancy or a secure tenancy.N.I.
(2) If the cohabitees cease to[F3 cohabit], the court may make a Part II order.
(3) On the application of the other cohabitee within three months after an occupation order is made, the court may make a Part II order.
4.—(1) The court shall not make a Part II order unless the dwelling-house is or was—N.I.
(a)in the case of spouses, a matrimonial home;F4. . .
[F4(aa)in the case of civil partners, a civil partnership home; or]
(b)in the case of cohabitees, a home in which they[F5 cohabited].
(2) Where while an occupation order is in force an application is made for a Part II order, the court may make the order applied for notwithstanding that, at the time when it does so, the occupation order has ceased to have effect otherwise than by reason of its revocation; and where a Part II order is made it shall not be affected by an occupation order subsequently ceasing to have effect.
5. In determining whether to exercise its powers under Part II and, if so, in what manner, the court shall have regard to all the circumstances of the case including—N.I.
(a)the circumstances in which the tenancy was granted to either or both of the spouses[F6, civil partners] or cohabitees or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy;
(b)the matters mentioned in Article 11(6)(a), (b), (c) and (d) and, where the parties are cohabitees and only one of them is entitled to occupy the dwelling-house by virtue of the tenancy, the further matters mentioned in Article 14(6)(e), (f), (g) and (h); and
(c)the suitability of the parties as tenants.
6. References in this Part to a spouse[F7, civil partner] or a cohabitee being entitled to occupy a dwelling-house by virtue of a protected tenancy or a secure tenancy apply whether that entitlement is in his own right or jointly with the other spouse[F7, civil partner] or cohabitee.N.I.
7.—(1) If a spouse[F8, civil partner] or cohabitee is entitled to occupy the dwelling-house by virtue of a protected tenancy or a secure tenancy 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[F8, civil partner] or cohabitee—N.I.
(a)the estate which the spouse[F8, civil partner] or cohabitee 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 but subject to all covenants, obligations, liabilities and incumbrances to which it is subject, and
(b)where the spouse[F8, civil partner] or cohabitee so entitled is an assignee of such lease or agreement, the liability of that spouse[F8, civil partner] or cohabitee under any covenant of indemnity by the assignee expressed or implied in the assignment of the lease or agreement to that spouse[F8, civil partner] or cohabitee.
(2) If an order is made under this paragraph, any liability or obligation to which the spouse[F8, civil partner] or cohabitee so entitled is subject under any covenant having reference to the dwelling-house in the lease, agreement or assignment, 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[F8, civil partner] or cohabitee.
[F8(3) If the spouse, civil partner or cohabitee so entitled is a successor within the meaning of Chapter 2 of Part 2 of the Housing (Northern Ireland) Order 1983 (S.I. 1983/1118 (N.I. 15))—
(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 cohabitee,
is to be deemed also to be a successor within the meaning of that Chapter.]
8.—(1) This paragraph applies if the spouse[F9, civil partner] or cohabitee is entitled to occupy the dwelling-house by virtue of a statutory tenancy.N.I.
(2) The court may by order direct that, as from the date specified in the order,—
(a)that spouse[F9, civil partner] or cohabitee is to cease to be entitled to occupy the dwelling-house; and
(b)the other spouse[F9, civil partner] or cohabitee 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 paragraph 1 to 4, F10. . . of Schedule 1 to the [1978 NI 20.] Rent (Northern Ireland) Order 1978, as to the succession by the widow or widower[F9 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 or the corresponding provisions of the Rent Restriction Acts have or have not already had effect in relation to the statutory tenancy.
F10Words in Sch. 2 para. 8(3) repealed (1.4.2007) by Private Tenancies (Northern Ireland) Order 2006 (S.I. 2006/1459 (N.I. 10)), arts. 1(3), 75, Sch. 5; S.R. 2006/428, art. 3(c)
9.—(1) If the court makes a Part II order, it may by the order direct the making of a payment by the spouse[F11, civil partner] or cohabitee to whom the tenancy is transferred ( “the transferee”) to the other spouse[F11, civil partner] or cohabitee ( “the transferor”).N.I.
(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 anytime 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.
10.—(1) If the court makes a Part II order, it may by order direct that both spouses[F12, civil partners] or cohabitees 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—N.I.
(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[F12, civil partner] or cohabitee 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.
11 The date specified in a Part II order as the date on which the order is to take effect must not be earlier than—N.I.
(a) in the case of a marriage in respect of which a decree of divorce or nullity has been granted, the date on which the decree is made absolute;
(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.]
12—(1) If after the grant of a decree dissolving or annulling a marriage either spouse remarries or forms a civil partnership, that spouse is not entitled to apply, by reference to the grant of that decree, for a Part II order.N.I.
(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.]
13.—(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.N.I.
(2) Rules of court may provide that an application for a Part II order by reference to a decree shall not, without the leave of the court by which that decree was granted, be made after the expiration of such period from the grant of the decree as may be prescribed by the rules.
14.—(1) If a spouse[F15 or civil partner] is entitled to occupy a dwelling-house by virtue of a tenancy, this Schedule does not affect the operation of Articles 4 and 5 in relation to the other[F15 spouse's or civil partner's home rights].N.I.
(2) If a spouse[F15, 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 Articles 11, 13 and 14.
Schedule 3—Amendments
Article 41(2).
1. In this Schedule—N.I.
“the Order of 1980” means the [1980 NI 5.] Domestic Proceedings (Northern Ireland) Order 1980;
“the Order of 1984” means the [1984 NI 14.] Family Law (Miscellaneous Provisions) (Northern Ireland) 1984; and
“the Order of 1989” means the [1989 NI 4.] Matrimonial and Family Proceedings (Northern Ireland) Order 1989.
2. Nothing in this Order affects any application for an order under Article 18 or 21 of the Order of 1980 or Article 4 or 13 of the Order of 1984 which is pending immediately before the commencement of the repeal of that Article.N.I.
3. Nothing in this Order affects any application for an order under Schedule 1 to the Order of 1989 which is pending immediately before the commencement of the repeal of that Schedule.N.I.
4.—(1) In this paragraph an “existing order” means any order under Article 18 or 21 of the Order of 1980 or Article 4 or 13 of the Order of 1984 which—N.I.
(a)is in force immediately before the commencement of the repeal of that Article; 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 this Order prevents an existing order from remaining in force or affects the enforcement of such an order.
(3) Nothing in this Order affects any application to vary or discharge an existing order, but the court may, if it thinks it is just and reasonable to do so, treat the application as an application for an order under this Order.
(4) The making of an order under this Order between parties with respect to whom an existing order is in force discharges the existing order.
5.—(1) Any reference (however expressed) in any statutory provision or any other instrument or document (whether that provision, instrument or document is passed or made before, on, or after the date on which this Order is made) to rights of occupation under, or within the meaning of, Part II of the Order of 1984 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, this Order.N.I.
(2) Any reference (however expressed) in any statutory provision (including this Order and any statutory provision amended by Schedule 3) or any other instrument or document to matrimonial home rights under, or within the meaning of, this Order shall be construed as including, in relation to times, circumstances and purposes before the commencement of Articles 4 to 10, a reference to rights of occupation under, or within the meaning of, the Order of 1984.
6.—(1) Any reference (however expressed) in any statutory provision or any other instrument or document (whether that provision, instrument or document is passed or made before, on or after the date on which this Order is made) to registration under the Order of 1980 or 1984 shall, in relation to any time after the commencement of Schedule 1 or as the case requires Articles 4 to 10, be construed as being or as the case requires including a reference to registration under this Order.N.I.
(2) Any reference (however expressed) in any statutory provision (including this Order and any statutory provision amended by Schedule 3) or any other instrument or document to registration under this Order shall be construed as including a reference to registration under the Order of 1980 or, as the case may require, 1984.
7. In Articles 4 to 9—N.I.
(a)any reference to an order made under Article 11 shall be construed as including a reference to an order made under Article 4 of the Order of 1984; and
(b)any reference to an order made under Article 11(5) shall be construed as including a reference to an order made under Article 4 of the Order of 1984 by virtue of Article 5(4) of that Order.
8. Nothing in this Schedule shall be taken to prejudice the operation of sections 28 and 29 of the [1954 c. 33 (N.I.).] Interpretation Act (Northern Ireland) 1954.N.I.
Schedule 5—Repeals
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