Law of Relationships - Essay Example

Q2) Part IV of the Family Law Act 1996 (the FLA) empowers courts in family law proceedings to make various types of order to offer protection and theoccupation order under section 33 of the FLA is pertinent to Belinda’s current situation. However, the FLA only entitles the court to make such orders if the application is made by an “associated person”1. 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”. Belinda and Andrew are not married and in order to apply for a protective order Part IV of the FLA Belinda will have to come within the definition of “associated persons” as prescribed by the FLA. 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 fact2. If we apply this by analogy to Belinda and Andrew’s position, it is evident that they have been living together for nine years and have had one child together. As such, the factual circumstances clearly operate in Belinda’s favour to indicate that she and Andrew 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 Belinda against Andrew under the FLA and particularly whether she can get him out of the property as desired. With regard to an occupation order, it is evident that the property was purchased by Andrew before his relationship with Belinda and Belinda has no beneficial or proprietary rights in the property with Andrew 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 Andrew and Belinda, 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 Andrew and Belinda and the conduct of the both in relation to each other3. The important consideration is the effect of the conduct on Belinda and not Andrew’s intention (G v G (Occupation Order: Conduct4. 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 Belinda suffering from Andrew’s constant bullying and verbal abuse towards her since his car accident. Furthermore, in the case of Humberside CC v B5, 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”6. If we apply this by analogy to the current scenario, the harm suffered by Belinda and the potential for recurrence is likely to tip the balance in favour of Belinda in an application for an occupation order7. Furthermore, the fact that Belinda and Andrew have a child together will also be an important factor in considering the decision to grant an occupation order. Section 36(6) (g) provides that in deciding whether to make an occupation order the court shall consider “whether there are ….any children who are children of both parties or for whom both parties have or have had parental responsibility”. In addressing the fact that there is a minor living in the house, section 36(8) further requires the court to consider whether the “applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent”. Accordingly, the degree of harm likely to be suffered by their child Carol will be relevant to the application for an occupation order. Moreover, 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 Andrew and Belinda’s relationship, the fact that they had been together for nine years, have a romantic relationship coupled with the fact that they have a child clearly points towards commitment in the relationship. However on the other hand the relationship has been fraught with conflict for the past year. Nevertheless overall, the court will undertake a balancing act and the length of their relationship coupled with her suffering verbal abuse and bullying will undoubtedly operate in her favour in considering whether to make an occupation order8. 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 and an order under section 36 cannot exceed a period of six months at any one time. However, it is evident from the factual scenario that Andrew has a higher earning capacity and pays the mortgage, which Belinda must consider in making an application as occupation orders solely address occupation rights in a dwelling without appropriate consideration to financial commitments. For example, in the case of Nwogbe v Nwogbe9 (which involved an application for an occupation order) it was held that when making an occupation order there was no power to enforce an order to include the payment of rent and other outgoings on the basis that such orders did not come under the Administration of Justice Act 1970. Therefore, in summary whilst the factual circumstances indicate that Belinda may succeed in securing an occupation order to remove Andrew from the property, this will not exceed six months and will not address the financial obligations in respect of the property. 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. 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 Lowe., & Douglas., (2006). Bromley’s Family Law. 10th Revised Edition LexisNexis UK. 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 Statutes The Children Act 1989 The Family Law Act 1996 The Domestic Violence, Crime and Victims Act 2004 All available at www.opsi.gov.uk Read More