Family Law Issues - Assignment Example

FAMILY LAW – PROBLEM QUESTION ASSIGNMENT Do Maria and Homer come within the definition of “associated persons” and cohabitants under the Family Law Act 1996? Part IV of the Family Law Act 1996 (the FLA) empowers courts in family law proceedings to make two types of order to offer protection which are pertinent to Maria’s current situation; namely, a non-molestation order and an occupation order (Section 42 and Section 33 of the FLA respectively). However, the FLA only entitles the court to make such orders if the application is made by an “associated person” (Herring 2007). For example, with regard to non-molestation orders, Section 42(2) (a) of the FLA provides that the court can make an order if “an application for an order has been made ……by a person who is associated with the respondent”. Maria and Homer are not married and in order to apply for a protective order Part IV of the FLA Maria will have to come within the definition of “associated persons” as prescribed by the FLA (A Diduck., & F Kaganas., 2006). Section 62 of the FLA defines “associated persons” and section 62(3) expressly includes cohabitants within the definition of “associated persons”. Furthermore, section 62(1) (a) of the FLA defines “cohabitants” as being “a man and woman who, although not married to each other, are living together as husband and wife”, which is ultimately a question of fact (S Gore., 2007). If we apply this by analogy to Maria’s position, although Maria theoretically had a separate bedroom and in practice financially contributed to the bills and food, she did not pay rent as a lodger. Moreover, Maria and Homer had been dating for just over a year, had a sexual relationship, frequently slept together and shared a social life as a couple. As such, the factual circumstances clearly operate in Maria’s favour to indicate that she and Homer were both “cohabitants” for the purpose of falling under the FLA definition of “associated persons,” which leads us to consider the potential protective remedies available to Maria against Homer under the FLA. 2. What Court orders are available to Maria? How would the advice differ if Maria and Homer were married? As stated in the previous section, the two potential court orders available to Maria are a non-molestation order and occupation order and I shall deal with each in turn. It is important to note at the outset that if Maria decides to seek relief under Part IV of the FLA, she can do so in as little as two days and in emergency situations, Section 45(1) of the FLA enables courts to make a non-molestation or occupation order without notice. At this stage, Homer would have no opportunity to reply to Maria’s application, however he would have an opportunity as soon “just and convenient” at a full hearing (Section 45(3)). Such ex-parte applications are determined with regard to the circumstances of the case, including an assessment of the risk of significant harm to Maria attributable to Homer’s conduct and whether Maria will be seriously prejudiced by the delay involved in taking normal steps to serve Homer with notice of the proceedings (Section 45). The factual scenario clearly operates in Maria’s favour in making an application for a non-molestation order as an “associated person” by virtue of being a cohabitant. The term “molestation” is not statutorily defined and it has been described in general terms as “pestering” in Vaughan v Vaughan (1973 3 All ER 449). Furthermore, in the case of Horner v Horner ([1982] 2 All ER 495) it was asserted that the term “molestation” included “any conduct which could be regarded as such a degree of harassment as to call for the intervention of the court”. This was reaffirmed in the case of C v C (Non-molestation Order: Jurisdiction [1998] 2 WLR 599). With regard to Maria’s situation, the fact that she was knocked unconscious and suffered concussion as a result of Homer’s violence, coupled with his recent violent attack will clearly come within the definition of molestation (Lowe & Douglas 2006). Indeed Viscount Dilhorne asserted in the case of Davis v Johnson ([1979] AC 264) that “violence is a form of molestation”. Viscount Dilhorne went further and stated that molestation “may also take place without the threat or use of violence and still be serious and inimical to mental or physical health”. Accordingly, in addition to the violence, Homer’s persistent invasion of Maria’s privacy and snooping into her personal things will also operate in Maria’s favour in demonstrating molestation in favour of her application for an order. Furthermore, Section 42(5) (a) of the FLA provides that “in deciding whether to exercise its powers under this section…… the court shall have regard to all the circumstances including the need to secure the health, safety and well being of the applicant”. If we apply this to Maria’s situation, it is highly likely that the fact that she suffered concussion, coupled with Homer’s recurrent violent behaviour will suffice to justify a non-molestation order (Lowestein 2005). As the primary objective under Section 42 of the FLA is to secure Maria’s health and safety, it is possible that the order may be imposed for a specified period of time until Homer completes rehabilitation and help for his violent behaviour as he has promised. With regard to an occupation order, it is evident that Maria has no beneficial or proprietary rights in the property with Homer being the sole proprietor. Accordingly, any occupation order application will be under Section 36 of the FLA as “one cohabitant with no existing right to occupy”. Section 36(6) of the FLA sets out the factors the court is required to take into account when deciding whether to make an occupation order in cohabitation cases, which include the housing needs of both Maria and Homer, their financial resources, the likely effect of any order or decision not to make an application order on the health, safety or well being of both Maria and Homer and the conduct of the both in relation to each other. The important consideration is the effect of the conduct on Maria and not Homer’s intention (G v G (Occupation Order: Conduct [1999] 1 FLR 392). Moreover, Section 63(1) of the FLA defines “harm” as the ill treatment or impairment of health, which is clearly demonstrated in the current scenario with Maria having suffered concussion and recurring threats of violence. Furthermore, in the case of Humberside CC v B ([1993] 1 FLR 257), it was indicated that the courts should consider the balance of harm test by analogy with the provisions of the Children Act 1989 and as such, harm should be “considerable, noteworthy or important” (per Booth J at p.263). If we apply this by analogy to the current scenario, the harm suffered by Maria and the potential for recurrence is likely to tip the balance in favour of Maria in an application for an occupation order (Probert 2006). However, in addition to these factual circumstances, the courts will also consider the nature of the parties’ relationship and the length of time they lived together as cohabitants (Section 36(6) of the FLA). Prior to the implementation of the Domestic Violence, Crime and Victims Act 2004 (the DVCVA), the courts had to have regard to the fact the cohabitants had not given each other the level of commitment involved in marriage(ex Section 41 of the FLA). However, this provision has now been repealed and section 36(6) of the FLA has now been amended to provide that when considering the nature of the parties’ relationship in the cohabitation context, the court must take into account, the level of commitment involved in the relationship. If we consider this in context of Maria and Homer’s relationship, the fact that they had been together for just over a year, have a romantic relationship coupled with the fact that Maria lives in Homer’s property rent free will prima facie point towards a strong commitment in the relationship. However on the other hand the relationship has been fraught with conflict, Maria did pay for her own food and bills and moved in as she needed somewhere to stay as opposed to being motivated by the natural progression in her romantic relationship with Homer. Nevertheless overall, the court will undertake a balancing act and the length of their relationship coupled with her suffering violence will undoubtedly operate in her favour in considering whether to make an occupation order (Probert 2006). Furthermore, under Section 36(8) of the FLA, the courts have discretion to make an occupation order if the balance of harm test tips in a cohabitant applicant’s favour. Furthermore, an order under section 36 cannot exceed a period of six months at any one time. In summary, as a cohabitant Maria will be entitled to make an application for a non-molestation order, which on the basis of the facts is likely to be granted. In contrast to any potential occupation order, a non-molestation order can be made for a specified period or until a further order without limitation. With regard to an application for an occupation order, Maria will be entitled to make an application under Section 36 of the FLA as a cohabitant with no proprietary interest and the granting of an order will be dependant on the balance of harm test. The facts would suggest that the balance of harm test will operate in Maria’s favour however any order awarded will be limited to a period of six months. If Maria and Homer were married, the essential difference would lie in Maria’s rights regarding an occupation order (Lowe & Douglas 2006). Notwithstanding Maria’s lack of legal or beneficial interests in the property, Maria would by virtue of section 30 of the FLA have matrimonial home rights, giving her the right of occupation (Herring 2007). In order to be binding on third parties, the right would have to be registered as a land charge in the case of unregistered land or a notice if the property is registered (Herring 20070. As such, Maria’s matrimonial home rights would render her “a person entitled” under section 33 of the FLA in respect of any application for an occupation order. The criteria under section 33 of the FLA also requires the court to undertake the balance of harm test as discussed above in relation to section 36, however there is no requirement to consider the commitment between the parties. Furthermore, if the balance of harm test weighs in Maria’s favour, the court has a positive duty to make an occupation order under section 33, which contrasts with Maria’s position under Section 36 of the FLA in respect of cohabitants where the court has discretion to make an occupation order notwithstanding evidence of domestic violence. 3. Enforcement of Orders With regard to enforcement of the above mentioned orders, it has been commented that “the existence of a watershed “cut to fit” variant orders belittle the fact that domestic violence is a defining problem in the lives of the people that are classified into variant categories” (S, Choudhury., & J, Herring., (2006)). Overall, the civil injunctions offer temporary protection with the continued problem of availability of legal services funding to obtain an order in practice (Bird 2002). This is further compounded by the problem of effective enforcement and sanctions for breach of injunctions by the respondent. Women’s Aid highlighted this by reference to comments of a victim during the DVCVA consultation process stage, who stated that without effective sanctions for breach and enforcement, an injunction “is no more use than waving a till receipt from ASDA” (Report available at www.womensaid.org.uk). Under the DVCVA, section 42 of the FLA has now been amended to render breach of a non-molestation order a criminal offence (Section 42A). Accordingly, if Homer breached the order, he would be liable to conviction on indictment, to imprisonment for a maximum sentence of five years, or a fine, or indeed both. Alternatively, he could be liable summarily and convicted to 12 months’ imprisonment or a fine, or both (Section 42A). Moreover, as the maximum penalty is five years’ imprisonment, the offence is arrestable under section 24(1) of the Police and Criminal Evidence Act 1984. Accordingly, the police have automatic powers of arrest under the order without the requirement to apply to the civil court for an arrest warrant. Furthermore, section 42A of the FLA provides that a respondent is only guilty of criminal offence if they are aware of the existence of the non-molestation order. With regard to occupation orders, the DVCVA failed to implement recommendations for criminalizing occupation orders (Herring 2007). However, Section 47 of the FLA enables the court to attach powers of arrest to an occupation order unless it is satisfied that Maria can be protected without such power of arrest (Section 47(2)). Whilst the court can accept undertakings in relation to an occupation order, there is no power of arrest available in respect of undertakings (Bird 2002). Accordingly, from Maria’s perspective the non-molestation order is likely to offer the strongest form of protective remedy. BIBLIOGRAPHY Barlow, A., Duncan, S., James, G., and Park, A., Cohabitation, Marriage and the Law-Social Change and Legal Reform in the 21st Century. Oxford Hart Publishing 2005 Bird, R, Domestic Violence Law & Practice, Family Law Series London (2002) Burton, M., “Domestic Violence – From Consultation to Bill” [2004] Fam Law 128. S, Choudhury., & J, Herring., (2006). Righting Domestic Violence. International Journal of Law, Policy and the Family. Conway, H.L., The Domestic Violence, Crime and Victims Bill. [2004] Fam Law 132 A Diduck., & F Kaganas., (2006). Family Law, Gender and the State: Text Cases and Materials. 2nd Edition S, Gore., (2007). In Practice: the Domestic Violence, Crime and Victims Act 2004 and Family Law Act Injunctions. Family Law Journal 37. J, Herring., (2007). Family law. 3rd Edition Longman HMCPSI Violence at Home: A joint thematic Inspection of the Investigation and Prosecution of Cases Involving Domestic Violence 2004. Home Office., (2003). Safety & Justice: The Government’s proposals on Domestic Violence. Home Office London. Available at www.homeoffice.gov.uk Home Office (1999). Living without fear- an integrated approach to tackling violence against women. Published by The Women’s Unit, Cabinet Office. Home Office (2002). Domestic Violence: Break the Chain Multi-Agency Guidance for Addressing Domestic Violence. Available at www.homeoffice.gov.uk Lowe., & Douglas., (2006). Bromley’s Family Law. 10th Revised Edition LexisNexis UK. L.F., Lowestein (2005). Domestic Violence: Recent Research. Police Journal. Claire McGlynn., (2006) Families and the European Union. Cambridge University Press. Mykituik Roxanne, Family Law: Cases and Materials, Osgoode Hall Law School, (2006) R, Probert., (2006) Cretney’s Family Law., 6th Revised Edition (2006) Sweet & Maxwell Women’s National Commission: Unlocking the Secret. December 2003 Statutes The Police and Criminal Evidence Act 1984 The Children Act 1989 The Family Law Act 1996 The Domestic Violence, Crime and Victims Act 2004 All available at www.opsi.gov.uk Other websites: www.cjsonline.gov.uk www.homeoffice.gov.uk www.womensaid.org.uk Read More