Whereas a draft of this Order has been approved by a resolution of each House of Parliament: Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: - Title and commencement 1. - (1) This Order may be cited as the Family Homes and Domestic Violence (Northern Ireland) Order 1997. (2) This Order shall come into operation on such day or days as the Secretary of State may by order appoint. Interpretation 2. - (1) The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly. (2) In this Order -
(b) any caravan, houseboat or structure which is occupied as a dwelling,
and any yard, garden, garage or outhouse belonging to it and occupied with it;
(b) under the provisions mentioned in paragraph (3);
(b) in relation to a child, means ill-treatment or the impairment of health or development;
(b) the brother, sister, uncle, aunt, niece or nephew (whether of the full blood or of the half blood or by affinity) of that person or of that person's spouse or former spouse,
and includes, in relation to a person who is living or has lived with another person as husband and wife, any person who would fall within paragraph (a) or (b) if the parties were married to each other;
(b) where the order was made by a county court, a judge or district judge of that or any other county court; or (c) where the order was made by a court of summary jurisdiction, a resident magistrate;
(3) The provisions referred to in the definition of "family proceedings" are -
(b) the Matrimonial Causes (Northern Ireland) Order 1978; (c) the Domestic Proceedings (Northern Ireland) Order 1980; (d) the Adoption (Northern Ireland) Order 1987; (e) Part IV of the Matrimonial and Family Proceedings (Northern Ireland) Order 1989; (f) section 30 of the Human Fertilisation and Embryology Act 1990; (g) Parts II, III, V and XV of the Children (Northern Ireland) Order 1995.
(4) Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.
(b) "former cohabitees" is to be read accordingly, but does not include cohabitees who have subsequently married each other.
(2) In this Order "relevant child", in relation to any proceedings under this Order, means -
(b) any child in relation to whom an order under the Adoption (Northern Ireland) Order 1987 or the Children (Northern Ireland) Order 1995 is in question in the proceedings; and (c) any other child whose interests the court considers relevant.
(3) For the purposes of this Order a person is associated with another person if -
(b) they are cohabitees or former cohabitees; (c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder; (d) they are relatives; (e) they have agreed to marry one another (whether or not that agreement has been terminated); (f) in relation to any child, they are both persons falling within paragraph (4); or (g) they are parties to the same family proceedings (other than proceedings under this Order).
(4) A person falls within this paragraph in relation to a child if -
(b) he has or has had parental responsibility for the child.
(5) If a child has been adopted or has been freed for adoption by virtue of any of the provisions mentioned in Article 16(1) of the Adoption (Northern Ireland) Order 1987, two persons are also associated with each other for the purposes of this Order if -
(b) the other is the child or any person -
(ii) with whom the child has at any time been placed for adoption.
(6) A body corporate and another person are not, by virtue of paragraph (3)(f) or (g), to be regarded for the purposes of this Order as associated with each other. Rights concerning matrimonial home where one spouse has no estate, etc. 4. - (1) This Article applies if -
(ii) any statutory provision giving that spouse the right to remain in occupation; and
(b) the other spouse is not so entitled.
(2) Subject to the provisions of this Order, the spouse not so entitled has the following rights ("matrimonial home rights") -
(b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.
(3) If a spouse is entitled under this Article to occupy a dwelling-house or any part of a dwelling-house, any payment or tender made or other thing done by that spouse in or towards satisfaction of any liability of the other spouse in respect of rent, mortgage payments or other outgoings affecting the dwelling-house is, whether or not it is made or done in pursuance of an order under Article 18, as good as if made or done by the other spouse.
(b) if the spouse occupies the dwelling-house as that spouse's only or principal home, is to be treated, for the purposes of Chapter II of Part II of the Housing (Northern Ireland) Order 1983, as occupation by the other spouse as the other spouse's only or principal home.
(5) If a spouse ("the first spouse") -
(b) makes any payment in or towards satisfaction of any liability of the other spouse ("the second spouse") in respect of mortgage payments affecting the dwelling-house,
the person to whom the payment is made may treat it as having been made by the second spouse, but the fact that that person has treated any such payment as having been so made does not affect any claim of the first spouse against the second spouse to an estate in the dwelling-house by virtue of the payment.
(b) only so long as the other spouse is entitled as mentioned in paragraph (1) to occupy the dwelling-house, except where provision is made by Article 5 for those rights to be a charge on an estate in the dwelling-house.
(9) Without prejudice to any rights which arise by virtue of an equitable estate, a spouse who has only such an estate is to be treated for the purpose of determining whether he has matrimonial home rights as not being entitled to occupy the dwelling-house by virtue of that estate; and this Article shall apply accordingly where each of two spouses is so entitled.
(b) the date of the marriage, and (c) 1st September 1989 (the commencement date of Part II of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984).
(4) Paragraph (5) applies if, at any time when a spouse's matrimonial home rights are a charge on an interest of the other spouse under a trust, there are, apart from either of the spouses, no persons, living or unborn, who are or could become beneficiaries under the trust.
(b) the termination (otherwise than by death) of the marriage,
unless the court directs otherwise by an order made under Article 11(5).
(b) that estate is surrendered to merge in some other estate expectant on it in such circumstances that, but for the merger, the person taking the estate would be bound by the charge,
the surrender has effect subject to the charge and the persons thereafter entitled to the other estate are, for so long as the estate surrendered would have endured if not so surrendered, to be treated for all purposes of this Order as deriving title to the other estate under the other spouse or, as the case may be, under the trustees for the other spouse, by virtue of the surrender. |
© Crown copyright | Prepared
23 June 1998
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