Family Law Act of 1996: In Re Homer and Maria - Case Study Example

Family Law Act of 1996: In Re Homer and Maria Question: Whether the couple comes within the definition of “associated persons” and “cohabitants” under the Family Act 1996. Ans.: Yes, the relationship of Homer and Maria comes within the definition of cohabitants and associated persons under the Family Act 1996. The said law defined cohabitants as “a man and a woman who, although not married to each other, are living together as husband and wife.”1 On the other hand, the same law defined “associated persons” as, inter alia, those who are “(b) presently cohabiting or cohabited in the past; (c) living or have lived in the same household except if one is a tenant, employee, lodger or boarder. 2 The couple’s relationship falls within the ambit of the said law. First, they are a man and a woman, and; second; they are not married. Anent the third requirement, the conduct of the couple is sufficient to indicate that they are living together as man and wife. In the case of Crake and Butterworth v. SBC 3, the court laid down some indicators that a couple is living together as man and wife: two people of the opposite sex; membership in the same household; stability and some duration of the relationship; financial support; sexual relationship; children of the relationship; and public acknowledgment of the relationship.4 Despite the separate bedrooms, the conduct of the couple in general indicates the intent to live together as husband wife. And by virtue of their being cohabitants they automatically qualify as “associated person” under Sec. 62 (3)(b). Question: The court orders which might be available to Maria. To what extent would your answer be different if they were married? Ans.: Maria can seek relief by applying for an occupation order under Section 35 of Part IV on Family Homes and Domestic Violence and a non-molestation order under Sec. 42 of the Family Law Act. The aforesaid title treats of possible actions in the event of marriage or cohabitation breakdown and one of the parties called the applicant seeks relief by applying for an occupation order. In cohabitation, as in the case of Homer and Maria, the applicable provision under the said title is section 36, which is applicable to Maria because she has no existing right to occupy the dwelling house, the same being registered in the sole name of Homer. The relevant subsections applicable to the case of Maria under Section 36 are: (3), (5), (6), (7), (8), (10), and (13). Subsection (3) of Section 62 of the Family Act states that “if an applicant is in occupation, an order under this section must contain provision – (a) giving the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the respondent for the period specified in the order, and (b) prohibiting the respondent from evicting or excluding the applicant during that period.” 5 Maria must include this provision in her application for relief in the event that she will take advantage of other relief and orders under this Section to ensure that she will not be evicted by Homer during the period that the orders she will be seeking will be in force and effect once he finds out that she sought relief under the Family Law Act of 1996. Subsection (5) of the said Section is a provision that will seem to infringe upon Homer’s sole ownership of his flat albeit for a limited duration only because the relief it will provide Maria, if she decides to take advantage of this provision, will either limit his use of his property ot totally eject him out of it. The entire subsection reads in toto: “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 Under the relief mentioned in the last preceding paragraphs, Homer, the real owner of the flat, would ironically be restricted in the use of his house by limiting him to certain areas and making off limits to him areas used by Maria like the latter’s bedroom. A worse fate for Homer would be if the court decides to throw him out of the house or totally prohibit him from entering his flat. He could also be ordered to stay away within a certain distance from the places Maria frequents which would include the house and its vicinity. However a subsequent subsection, viz. (7), requires the court to make certain considerations before imposing occupation orders under Section 36 and these are the following: “the length of the cohabitation; the length of time since separation; whether there any children, and; the existence of any pending proceedings.” 7 The implication of this provision on Maria’s case is that there is no certainty that she will find relief under (3) and (5) considering that she and Homer had only been cohabiting for a relatively short time of one year, they have no children, and there is no pending action between them. However, even Maria is able to find relief under subsections (3) and (5), this relief however can partake only of a temporary nature. Thus, under subsection (10) an occupation order under Section 36 can only take effect for 6 months, extendible to another 6 months upon application. This is because under the FLA 1996 a cohabitation relationship, unlike legally married spouses, does not automatically acquire occupation rights on the dwelling house. The law being followed in such a relationship is strictly in accordance with the property law where the beneficial owner of the property does not share its ownership with his or her partner. 8 A case in point is Burns v Burns9 where the cohabiting couple stayed together for 19 years. When the relationship broke down however, the woman left with nothing despite the fact that she raised the kids, worked, and contributed to the household expenses. She was not able to establish constructive trust and hence, had no beneficial interest on the dwelling-home which was in the name of her partner. And lastly, during the limited period in which the occupation order is in effect, the applicant is deemed a spouse with respect to certain acts of the partner in settling liabilities or payments under Section 30 subsections (30 to (6). Another relief to which Maria is entitled under the Family Law Act of 1996 is the non-molestation order under Section 42 thereof. This particular provision has a broader coverage because it does not involve only spouses or cohabitants but persons with whom a party has a connection. The term therefore used in this section to refer to the concerned parties is “associated persons.” A cohabitant like Maria who is deemed an associated person may use the provision on non-molestation order under subsections (1), (2), (5), (6), and (7). Under subsection (1) of the said section, a non-molestation order is defined as an “order containing either or both of the following provisions – (a) provisions prohibiting a person (”the respondent”) from molesting another person who is associated with the respondent […]” 10 This relief which may be availed even without a pending proceeding in the family court11 is ideal for Maria to ensure that Homer will be prevented from taking a hand against her person the next time.. In the case of G v F (Non Molestation Order: Jurisdiction), 12 a couple were deemed to be cohabitants within the meaning of Section 62 despite the fact that they were not living together. This fact had initially made the Wimbledon Family Court to refuse to hear the case of a non-molestation case. However on appeal, the Court of Appeals rebuked the lower court for refusing the case stating that a non-molestation case is supposed to be an emergency case where a party asks for immediate relief. Notwithstanding the fact that that the two parties did not live together, still there were other indicia that would support a finding of cohabitation like a sexual relationship, financial support and the respondent’s admission of a cohabitation. Non-molestation orders may come with other legal remedies to guarantee that the applicant will be safe. This is guaranteed by subsection (5) (a) which states to the effect that the court may likewise consider temporary remedies pending his determination whether to exercise his power to issue non-molestation orders. In the case of Re B-J (A Child) (Non-Molestation Order: Power of Arrest) 13, the cohabitants separated and the woman applied for a parental responsibility order. The court noting that several violent incidents between the two cohabitants happened in the past likewise issued a non-molestation order with a power to arrest attached to it. The power of arrest is laid down in Section 47 which states to the effect that if the court makes an order it can attach a power of arrest to the said order if it determines that the respondent has used or is threatening to use violence against the applicant. In Maria’s case, an attached power of arrest to the non-molestation order will most likely be granted by the court considering that not only has Homer hit her twice but the kind of violence he used on her is excessive, viz., knocking her unconscious for several hours during the first time and extensively bruising her the second time. But even without a power of arrest attached to the non-molestation order, the mere breach of the said order could land Homer in prison as was illustrated in the case of Rafiq v Muse14 where the a son who had been in care for a very long time and had not seen his mother, began terrorising and threatening her the moment he was released from care. Because of the son’s actuations, the mother almost committed suicide. The Court then issued a non-molestation order which was subsequently breached by the son as a consequence of which he was imprisoned for a total number of six months. The power of the courts to issue an occupation order and a non-molestation order also carries with it the discretion to issue them ex-parte, meaning even before the respondent had the opportunity to respond to the application for such orders by the applicant if the court determines that there is necessity for a speedier issuance of the said orders. 15 Thus, if the court decides for example, that Maria would be at greater risk if the non-molestation order or occupation order is not immediately issued the court will use its discretion to issue it ex-parte. However, in the case of Chalmer v Johns,16 the court reversed an order granting an interim occupation order upon the applicant who separated from the father of her child upon showing that although the relationship was characterized as stormy, the domestic violence was nevertheless considered only as minor. It was held that in such cases, the application for an occupation order must be determined only upon a thorough and extensive hearing. In granting occupation orders, the court must do a balancing act of the effects of harm that will fall on the parties. If the grant is more harmful than its non-issuance then the order must not be granted. A married spouse is automatically granted occupation rights in the family home or matrimonial house. 17 If Homer and Maria were married, Maria would have a matrimonial right of the dwelling house by reason of her marriage to Homer and thus, the court does not have to consider the length of time of the couple’s staying together as married persons, nor require the presence of children. Maria would then be able to apply for an occupation order under Section 32 where she could request the court to order Homer to leave the house or regulate his stay in the matrimonial house. This is so because the flat has been established as the matrimonial house of the spouses. However, other properties in Homer’s sole name and not in contemplation as a matrimonial house would not give Maria the relief of an occupation order. In such a case only a non-molestation remedy would be available. 18 Question: Enforcement of orders. Ans.: A non-molestation order should be enforceable as against Homer. First, the relationship of the couple falls within the ambit of “associated persons” which makes the case ripe under Section 45 on non-molestation orders. Second, considering Homer’s violent actions against Maria which can only be classified as excessive i.e., knocking her unconscious for several hours the first time and extensively bruising her the second time, and warrant the issuance of a non-molestation order against him. Attaching a warrant of arrest is proper in this case considering the severity of the violence of Homer. The effect that Maria has on Homer seems to drive the latter with inexplicable and uncontrollable violence that might result in an irreversible harm hence, there is a need for an ex-parte issuance of a non-molestation order. However, with respect to the issuance of an occupation order, Maria might not be successful in that area. In the first place, her cohabitation with Homer has not been solidly established considering that they have been living only for one year, making an order to limit Homer’s use of his own flat or totally prevent him from using it would seem unfair and unjust. Besides, Maria is not totally blameless albeit there is no justification for hitting a woman. Maria’s constant acts of putting down Homer had perhaps awakened something in him that made him behave irrationally. Their incompatibility would be another reason why an occupation order would fail because it would mean continued accessibility between two clashing personalities.. Another compelling reason why an application for an occupation order will fail is the lack of children. Likewise, the fact that Maria seemed financially independent from Homer making her capable of finding her own place to stay will be a factor for the rejection of an application for an occupation order. References Burns v Burns [1984] FLR 216 Hester, Marianne & Pearson, Chris & Harwin, Nicola & Abrahams, Hilary. (2006). Making An Impact: Children and DomesticViolence Kingsley Publishers, p. 127 Barlow, Anne (2005). Cohabitation, Marriage and the Law: Social Change and Legal Reform in The.21st Century. Hart Publishing, p Re B-J (A Child) (Non-Molestation Order: Power of Arrest) [2000] 2 FCR 599). 6.16.2 The Family Law Act 1996. Crake and Butterworth v. SBC [1982] 1 All ER 498 Rafiq v Muse [2000] 1 FLR 820 60 Lockton, Deborah & Ward, Richard. (2006). Domestic Violence. Cavendish Publishing, p. 59 Chalmer v Johns [1999] 1 FLR 392. 80 Read More