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Private Individuals > Family Law > Family Law Guide

Family Law Guide

Please remember this is only an outline of what might be involved and there is no substitute for detailed legal advice.

Divorce

  • There is no such thing as a "quickie divorce"
  • The only ground for divorce is the irretrievable breakdown of the marriage, but it is not quite that simple. The person who petitions for divorce also has to prove one of five facts:
    • The other party's adultery
    • The other party's unreasonable behaviour
    • The other party's desertion for at least two years
    • Two years separation plus the other party's consent
    • Five years separation
  • An undefended divorce normally takes about six months from start to finish. There is a cooling off period of six weeks between the initial decree of divorce (decree nisi) and the final decree (decree absolute)
  • There are sometimes good reasons to delay the decree absolute, e.g. there are pension issues which mean it is better to be a widow or widower rather than the former spouse in the event of an untimely death
  • Evidence in support of a petition is normally given by a sworn statement and not in the witness box in open court
  • It is still possible to defend divorces but a defended divorce is very rare

Children

  • Orders can be made about children of the family who are:
    • The children of one of the parties who are accepted into the married family
    • The children of the marriage
  • Terms like custody, joint custody, care and control, and access no longer exist. The buzz words for many years have been:
    • Parental Responsibility - the seal of natural parenthood plus the duty to consult and the right to be consulted about the policy decisions concerning the children
    • Residence - the party with whom the children are to live
    • Contact - what the absent parent sees of the children

There are other orders thats can be made.

  • The welfare of the children is the paramount consideration of the court. Most separating couples make very sensible arrangements about their children using their common sense
  • The arrangements are set out in a document filed with the divorce petition called the statement of arrangements as to the children. The court is usually able to approve the arrangements for the children relying on that document so that the divorce can proceed. Normally the court does not have to make orders about the children on divorce but will do so if necessary

Personal Protection and Occupation Orders

  • These are known loosely as injunctions and can be applied for if the behaviour of one or both of the parties makes it necessary
  • Powers of arrest can be attached to orders made but often undertakings (promises) are given by one or both of the parties to the court instead
  • If the injunction and/or undertaking is proved beyond reasonable doubt to have been broken, the party at fault can be sent to prison

Financial and Property Matters (known as 'ancillary relief')

  • If the parties have made a pre-nuptial agreement, this might be relevant in whole or in part
  • A court can make orders as to:
    • Maintenance - subject to the Child Support Agency jurisdiction for children
    • Lump sum orders - if there is cash available
    • Transfer of property - changing the previous ownership and including an order for sale if appropriate
    • Pensions - usually a pension sharing order but not necessarily an equal division
  • The court has to take into account a list of fairly obvious matters in deciding upon suitable orders but first consideration is given to the welfare of any minor children of the family
  • Conduct is not taken into account unless it would be unfair to ignore it
  • The parties have a duty to make full and frank disclosure of their financial position to each other
  • On this basis most claims are settled by negotiation between solicitors or possibly at mediation
  • Even when negotiations and/or mediation have broken down and an application has been made to the court, the court looks to help the parties reach an agreement at a Financial Dispute Resolution Hearing
  • In most cases it is better to have a court order so the parties know where they stand
  • The court has a duty as between the parties themselves to try to make a clean break ancillary relief order
  • Where the marriage is being terminated by divorce then wherever possible the financial links should also be terminated - this does not apply to children
  • Parliament is being encouraged to legislate in this field

Separation of Unmarried Couples/Partners (known as Cohabitation Disputes)

  • There is no such thing as a 'common law' marriage. You are either properly married or you are not married
  • There is no duty on either separating partner to maintain the other
  • A court can make orders about the children of separating partners - the test is the welfare of the children as always
  • The Child Support Agency can make maintenance assessments for the absent natural parent to pay the parent with care - when either party asks for it or there is no agreement
  • The law relating to determining distribution of capital and assets is often complicated and uncertain. There is great pressure on Parliament to change the law

Adoption

  • The law relating to adoption was reformed by the Adoption and Children Act 2002. The law and procedures are now quite different from what they used to be under the Adoption Act 1976. For example, couples can now adopt regardless of whether they are married or of the same sex
  • If the adoption application is not made by consent, first of all the court has to be asked to make a placement order
  • Whether it is now easier to obtain an Adoption Order remains to be seen but if an adoption order is made it will probably be easier for natural parents and extended families to obtain contact orders
  • Instead of making an adoption order the court can make a step-parent responsibility order or even a special guardianship order, which is a kind of "super residence order"

Care Proceedings

  • A local authority such as the Norfolk County Council, or the NSPCC, can issue care proceedings with regard to a child
  • It has to be proved that what is called the "threshold criteria" has been met. This means that exhaustive enquiries have to be made and reports and assessments obtained
  • When the case is heard the court can dismiss the application for want of proof, or decide that no order is necessary, or make a care order or even a supervision order. Contact (but not residence) orders can be made even when a care order is made
  • Parents and children are automatically entitled to free non-means and non-merits tested legal representation through public funding
  • Other persons (such as an aunt, uncle, or grandparent) can be given permission to intervene in the proceedings as parties but public funding is not automatic and is means and merits tested
  • Adoption proceedings can be linked to care proceedings