Introduction:
In the realm of family law, few issues are as complex and emotionally charged as the relationships that fall within the scope of domestic violence and family protection. The Family Law Act 1996 (FLA 1996) seeks to address these concerns by providing legal remedies to individuals who find themselves at risk from those they once called family or, as termed in the act itself, ‘associated persons’.
At the heart of the FLA 1996 lies this concept of associated persons. The relationships covered by the Act are broad, encompassing not only current spouses or partners but also former cohabitants, ex-spouses, and even individuals bound by more distant familial ties.
For a legal professional in family law, grasping the full implications of the “associated person” definition is essential for an effective application and the safeguarding of vulnerable clients. This article explores the intricacies of this criteria, offering an examination of its scope, particularly in the context of the parties being extended relatives or minors.
The Legal Definition of Associated Persons
The term “associated persons” is defined under Section 62(3) of the FLA 1996 as follows:
S62(3)
For the purposes of this Part, a person is associated with another person if—
- (a)they are or have been married to each other;
- (aa)they are or have been civil partners of each other;
- (b)they are cohabitants or former cohabitants;
- (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);
- (ea)they have or have had an intimate personal relationship with each other which is or was of significant duration;
- (eza)they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);]
- (f)in relation to any child, they are both persons falling within subsection (4); or
- (g)they are parties to the same family proceedings (other than proceedings under this Part).
A number of the listed associations are fairly straightforward and intuitive. However, complications arise when considering the highlighted criteria and case law has since provided some needed clarity.
Relatives’
The first and, as will be explained in due course, only port of call for any legal professional, at the time of writing, considering whether a proposed respondent is considered a relative under s62(3)(d) is to consider the definition at s63(1) of the FLA 1996.
S63(1)
……
“relative”, in relation to a person, means—
(a)
the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s [spouse, former spouse, civil partner or former civil partner], or
(b)
the brother, sister, uncle, aunt, niece [nephew or first cousin] (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person’s [spouse, former spouse, civil partner or former civil partner,
and includes, in relation to a person who [is cohabiting or has cohabited with another person], any person who would fall within paragraph (a) or (b) if the parties were married to each other [or were civil partners of each other;
But what if there is a relative that has not been explicitly mentioned in this list? In the case of M v D [2021] EWHC 1351¹ an ex-parte application was made for a non-molestation order by the applicant under s. 42(2) of the Family Law Act 1996. The respondent to the application was the applicant’s step nephew (her sister’s stepson).
The district judge at first instance had found that the relationship between the appellant and the respondent was not one which fell within the jurisdiction of FLA 1996 for the making of a non-molestation order. That finding was upheld on appeal by MacDonald J.
The appellant contended that, by reason of the appellant’s sister being married to the respondent’s father before his death, the respondent is the appellant’s “nephew” for the purposes of the definition of “relative” provided by s. 63(1) of the Family Law Act 1996, notwithstanding that the respondent is the appellant’s sister’s stepson, and therefore the appellant’s step-nephew. The court questioned whether the term “nephew” or the phrase “nephew … by marriage” in section 63(1)(b) of the Family Law Act 1996 can be interpreted to include a person in the position of the respondent.
MacDonald J concluded that ‘step-nephew’ did not fall within the terms of the FLA 1996 and that the inclusion of particular ‘step’ relatives and not others under the Act had been a deliberate decision by Parliament. The Judge also separated those relatives defined under s. 61(3)(a) as those of ‘lineal’ descent and those under s. 61(3)(b) as collateral relatives. His decision was that a “nephew…whether of full blood or of half-blood or by marriage or civil partnership” in s.63(1) of the FLA 1996 is not wide enough to encompass a step nephew.
It is evident from the case of M v D that the question of relatives under s62(3)(d) of FLA 1996 is restricted and the court is unlikely to expand the scope of a relative who can be considered an associated person beyond the list at s63(1).
“an intimate personal relationship of a significant duration” and the question of under 18’s.
S62(3)(ea) defines a category of associated persons as those that “have or have had an intimate personal relationship with each other which is or was of significant duration”. But what constitutes an ‘intimate personal relationship’ and how long is a ‘significant duration’?
In the case of D v T [2023] EWFC 97² , HHJ Baker not only considered these questions but also wrestled with the nuances of an application for a non-molestation order by an under 18-year-old.
The case concerned a 4-month relationship between teenagers, who, at the time of the relationship in question were aged 13 and 14. The court clarified that the definition of ‘intimate personal relationship’ involved emotional connections, companionship, and shared experiences even if sexual intimacy is not present. The ‘personal relationship’ element included the parties going out together and spending time in each other’s company; terming each other ‘boyfriend’ and ‘girlfriend’ to friends and family; kissing each other; and sending each other text and social media messages asserting their love for each other containing affectionate expressions, phrases and emojis.
The court was also satisfied that the ‘intimate’ element was met and reasoned that, as sexual intercourse under the age of sixteen is illegal, ‘intimacy’ should not just be synonymous with sexual acts. Indeed, if that was the case then it would risk excluding teenagers from necessary protection and the FL401 form explicitly provides for ‘16-18 year olds’ and under ‘16 year olds’ to apply for a non-molestation order.
As for the ‘significant duration’, the court considered that 4 months was a significant duration for the parties of their ages to be in a relationship. The Judge was clear at paragraph 29 of his judgment that “It is impossible to ascribe a ‘time-limit’ whereby a relationship goes from being of ‘insignificant’ to ‘significant’ duration. The setting of any such evaluation is of significant importance – in one context four months is no time at all and in another it can be a very long time indeed”.
Conclusion
In 2024, 30,823 applications were made for domestic violence remedies and 36,962 orders were made. Non-molestation orders formed 83% of orders applied for whilst occupation orders featured in the remaining 17%.³
With this many applications, it is imperative that legal professionals know exactly who can apply in the first place and who the Family Law Act 1996 is designed to protect. The concept of ‘associated persons’ under the Family Law Act 1996 is more than a definitional technicality, it is the legal gateway to crucial protections for individuals navigating some of the most vulnerable and volatile periods of their lives.
Finally, it is significant to note that where protection under FLA 1996 is not available, an alternative remedy may be available under the Protection from Harassment Act 1997 (PHA 1997), subject to the qualifying criteria under PHA 1997 being met.
Author: Eesa Khan
Eesa Khan can be instructed by emailing his clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
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