Family Law (Divorce etc.) Bill, Northern Ireland Assembly

Family Law (Divorce etc.) Bill

[AS INTRODUCED]

Contents

1978 Order

Effect on parties and any children
Facts of which petitioner must satisfy court
When requirement of oral testimony from petitioner may be dispensed with
No application required for decree of divorce to be made absolute
Mediation
Grounds of application for financial provision under Article 29 of the 1978 Order

1980 Order

Grounds of application for financial provision under the 1980 Order
Mediation under the 1980 Order

Equal treatment of husband and wife

Abolition of presumption of advancement
Abolition of common law duty to maintain
Housekeeping allowance

Supplementary

Amendments and repeals
Interpretation
Commencement
Short title

Schedules:

Schedule 1 Amendments of 1978 Order

Schedule 2 Repeals

B I L L

Make provision for certain general principles in the exercise of functions under the Matrimonial Causes (Northern Ireland) Order 1978; to amend Article 3 of that Order and Article 3 of the Domestic Proceedings (Northern Ireland) Order 1980; to provide for mediation in proceedings under those Orders; and to make provision for the equal treatment of husband and wife in certain cases.

BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

1978 Order

Effect on parties and any children

1. The court and any person in exercising functions under the Matrimonial Causes (Northern Ireland) Order 1978 (NI 15) (in this Act referred to as "the 1978 Order") shall have regard to the following general principles¾

(a) that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end¾

(i) with minimum distress to the parties and to the children affected;

(ii) with issues dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and

(b) that any risk to one of the parties in a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.

Facts of which petitioner must satisfy court

2. In Article 3 of the 1978 Order, for paragraph (2) (marriage not to be held to have broken down unless petitioner satisfies court of one or more facts), there shall be substituted the following paragraph¾

"(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts¾

(a) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (in this Order referred to as "two years' separation") and the respondent consents to a decree being granted;

(b) that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition (in this Order referred to as "three years' separation");

(c) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.".

When requirement of oral testimony from petitioner may be dispensed with

3. In Article 3 of the 1978 Order, for paragraph (4) (cases where oral testimony from petitioner not required) there shall be substituted the following paragraphs¾

"(4) The provision of paragraph (3) requiring the court to consider the oral testimony of the petitioner shall not apply in a case if the court orders that such testimony be dispensed with.

(4A) The court may make an order under paragraph (4)¾

(a) if¾

(i) an application is made by the petitioner;

(ii) the respondent consents to an order being made;

(iii) the court thinks fit to do so, having had regard in particular to the interests of any children to whom Article 44 applies; and

(iv) the petitioner does not allege that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or

(b) in any case, if the court for special reasons thinks fit to do so.".

No application required for decree of divorce to be made absolute

4. In Article 3(6) of the 1978 Order (decree of divorce to be decree nisi in first instance and not to be made absolute before certain period), there shall be added at the end the words "(but no application shall be required for the decree to be made absolute)".

Mediation

5.¾ (1) After Article 8 of the 1978 Order (encouragement of reconciliation of parties to marriage), there shall be inserted the following Article¾

"Mediation

8A.¾ (1) If at any stage of proceedings for divorce it appears to the court that it would be of advantage to the parties to the marriage to do so, the court may adjourn the proceedings to allow mediation to be provided with the consent of the parties with a view to securing agreement between them on any issue arising in the proceedings.

(2) The power conferred by this Article is additional to any other power of the court to adjourn proceedings.".

(2) In Article 15(2) of the 1978 Order (application of certain provisions to nullity proceedings), after "3(6)," there shall be inserted "8A,".

(3) In Article 19 of the 1978 Order (judicial separation), at the end there shall be added the following paragraph¾

"(4) Article 8A shall apply in relation to proceedings for judicial separation as it applies in relation to proceedings for divorce.".

(4) In Article 43 of the 1978 Order (reference for conciliation and report on children), sub-paragraph (i) of paragraph (1) (which provides for a reference to a suitably qualified person to consider the possibility of conciliating the parties to a marriage) shall cease to have effect.

Grounds of application for financial provision under Article 29 of the 1978 Order

6. In Article 29 of the 1978 Order (financial provision orders in case of neglect by party to marriage to maintain other party or child of the family)¾

(a) in paragraphs (1)(a) and (b), (2)(a) and (3)(a) for the words "has failed" there shall be substituted the words "ought in all the circumstances of the case";

(b) for paragraph (4) there shall be substituted the following paragraph¾

"(4) In relation to an application under this Article, Article 27(2)(c) shall have effect with the omission of the reference to the breakdown of marriage.".

1980 Order

Grounds of application for financial provision under the 1980 Order

7. In Article 3 of the Domestic Proceedings (Northern Ireland) Order 1980 (NI 5) (in this Act referred to as "the 1980 Order") (grounds of application for financial provision)¾

(a) in paragraphs (a) and (b), for the words "has failed" there shall be substituted the words "ought in all the circumstances of the case";

(b) paragraphs (c) and (e), and the word "or" immediately preceding paragraph (e), shall cease to have effect.

Mediation under the 1980 Order

8.¾ (1) After Article 28 of the 1980 Order (reconciliation) there shall be inserted the following Article¾

"Mediation

28A.¾ (1) If at any stage of the proceedings on an application for an order under Article 4 it appears to the court that it would be of advantage to the parties to the marriage to do so, the court may adjourn the proceedings to allow mediation to be provided with the consent of the parties with a view to securing agreement between them on any issue arising in the proceedings.

(2) The power conferred by this Article is additional to any other power of the court to adjourn proceedings.".

(2) In the cross-heading immediately preceding Article 28 of the 1980 Order, at the end there shall be added the words "and mediation".

Equal treatment of husband and wife

Abolition of presumption of advancement

9.¾ (1) The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished in relation to married or engaged couples.

(2) Subsection (1) shall not have effect in relation to anything done before the commencement of this section or anything done pursuant to any obligation incurred before the commencement of this section.

Abolition of common law duty to maintain

10. The rule of common law that a husband must maintain his wife is abolished.

Housekeeping allowance

11. If any question arises (whether during or after a marriage) as to the right of a party to a marriage to money derived from any allowance made by either party for the expenses of the matrimonial home or for similar purposes, or to any property acquired out of such money, the money or property shall, in the absence of any agreement between them to the contrary, be treated as belonging to each party in equal shares.

Supplementary

Amendments and repeals

12.¾ (1) The 1978 Order shall have effect subject to the minor and consequential amendments in Schedule 1.

(2) The statutory provisions specified in Schedule 2 are hereby repealed to the extent specified in the second column of that Schedule.

Interpretation

13. In this Act¾

"the 1978 Order" means the Matrimonial Causes (Northern Ireland) Order 1978 (NI 15);

"the 1980 Order" means the Domestic Proceedings (Northern Ireland) Order 1980 (NI 5).

Commencement

14.¾ (1) Sections 1 to 12 shall come into operation on such day or days as the Department of Finance and Personnel may by order appoint.

(2) An order under subsection (1) may contain such transitional provisions and savings as the Department of Finance and Personnel considers appropriate in connection with the order.

Short title

15. This Act may be cited as the Family Law (Divorce etc.) Act (Northern Ireland) 2002.

Schedules

Schedule 1

Amendments of 1978 Order

In Article 3(5) (power of court to grant divorce subject to Articles 4(2) and (7)), for "Articles 4(2) and (7)" substitute "Article 7".

In Article 4 (supplemental provisions as to facts raising presumption of breakdown)¾

(a) in paragraph (3) for "(b)" substitute "(c)";

(b) in paragraph (6) for "(d) and (e)" substitute "(a) and (b)";

(c) in paragraph (7) for "(d)" substitute "(a)".

In Article 6 (divorce not precluded by previous judicial separation) the following provisions shall cease to have effect¾

(a) in paragraph (2) the words "adultery, desertion or other";

(b) paragraphs (3) to (5).

In Article 7 (refusal of decree in five year separation cases on grounds of grave hardship to respondent)¾

(a) in paragraph (1) for "five" substitute "three";

(b) in paragraph (2)¾

(i) for "five" substitute "three";

(ii) for "as to any other fact mentioned in Article 3(2)" substitute "under Article 3(2)(c)".

In Article 12 (proceedings after decree nisi: special protection for respondent in separation cases)¾

(a) in paragraph (1) for "as to any other fact mentioned in Article 3(2)" substitute "under Article 3(2)(c)";

(b) in paragraph (2)¾

(i) for "five" in both places where it occurs substitute "three";

(ii) in sub-paragraph (b) for "as to any other fact mentioned in Article 3(2)" substitute "under Article 3(2)(c)".

In Article 20(2) (effect of judicial separation on intestacy), for "other party to the marriage had then been dead" substitute "marriage had been dissolved".

Article 53 (parties to proceedings under 1978 Order) shall cease to have effect.

Schedule 2

Repeals

Short Title	Extent of repeal
The Matrimonial Causes (Northern Ireland) Order 1978 (NI 15).	In Article 4¾ (a) paragraphs (1), (2) and (4); (b) in paragraph (5) the words "the period for which the respondent has deserted the petitioner or" and "the period of desertion or of". In Article 6¾ (a) in paragraph (2) the words "adultery, desertion or other"; (b) paragraphs (3) to (5). Article 11(2). Article 43(1)(i). Article 53.
The Domestic Proceedings (Northern Ireland) Order 1980 (NI 5).	In Article 3 paragraphs (c) and (e) and the word "or" immediately preceding paragraph (e). In Schedule 3, paragraph 13(b) to (d).
The Matrimonial and Family Proceedings (Northern Ireland) Order 1989 (NI 4).	In Schedule 2, paragraphs 12 and 13.
The Family Law (Northern Ireland) Order 1993 (NI 6).	Article 15.
The Family Homes and Domestic Violence (Northern Ireland) Order 1998 (NI 6).	In Schedule 3 the amendment of the Matrimonial Causes (Northern Ireland) Order 1978.