The Law Commission and the Family Home

AuthorMary Hayes
Published date01 March 1990
Date01 March 1990
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb01806.x
REPORTS
The
Law
Commission and
the
Family
Home
Mary
Hayes”
The enactment of the Children Act 1989 brings to an end one major piece of family law
reform in which the Law Commission played a leading role. The publication of the
Commission’s discussion paper on the Ground for Divorce in 1988 is a first stage in an
equally fundamental review, the outcome of which must have profound implications for
many aspects of family law. In publishing its Working Paper on
Domestic Violence and
Occupation
ofthe
Family Home’
the Commission seems to have acted in
the
belief that
they were addressing a discrete topic which could usefully be considered in isolation from
some more fundamental issues. Perhaps this belief explains why the Working Paper is
in some respects flawed.
The aim of the Law Commission was not to propose major changes in the present law
as to domestic violence and occupation of the family home, but rather to put forward a
system of unified remedies, to produce ‘a single set of remedies which could be made
available in all courts and all family proceedings’.2 Under the existing scheme, juris-
diction is divided between the High Court, county courts and magistrates’ courts, and
is derived from several different pieces of legislation;
so
there is evident fragmentation
which quite properly attracted the Commission’s attention.
It is important to note two features of the present law. First, in the High Court and
the county courts, remedies for domestic violence and the regulation of the occupation
of the family home are run together. Jurisdiction rests on the Matrimonial Homes Act
1983 and the Domestic Violence and Matrimonial Proceedings Act 1976, and
in
consequence
of the decision of the House of Lords in
Richards
v
Richards3
the criteria in section
l(3)
of the 1983 Act are of general relevance. In the magistrates’ courts, the jurisdiction under
the Domestic Proceedings and Magistrates’ Courts Act 1978 is violence based. This
prompted the Law Commission, in considering a unified scheme, to suggest the enlargement
of the magistrates’ jurisdiction. Second, under the Domestic Violence and Matrimonial
Proceedings Act 1976, the same remedies are available in the county court to cohabitees
as are available to
spouse^.^
As a result, the Working Paper frequently addressed the
position of both without distinguishing between them. However, it then had to ask whether,
under a unified system, magistrates should have the power to regulate, enforce or grant
rights of occupation in the case of ~ohabitees.~
The Commission’s concern to create a unified system of remedies obscures the policy
issues underlying some key distinctions. One is the distinction between, on the one hand,
cases of violence and threatened violence and, on the other, cases where a marriage is
in the process of breaking down. Violence needs an urgent and strong response, whereas
the question of occupation of the family home on relationship breakdown lacks that urgency,
and raises quite different policy issues. Unified treatment of the occupation rights of spouses
*
Senior Lecturer in Law, Sheffield University.
I
would like to thank my colleague David McClean for his
help in the preparation
of
this article.
1
2 Working Paper, para 1.3.
3
4
5
Paras 6.21-6.22. 6.34.
Law Com WP 113 (1989) (hereinafter Working Paper).
[1984] AC 174, decided by reference
to
the Matrimonial Homes Act 1967, now re-enacted with amendments
in the 1983 Act.
See Domestic Violence and Matrimonial Proceedings Act 1976,
s l(2).
222
The
Modern
Law
Review
53:2 March 1990 0026-7961

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