Family Law Guide
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This is a brief layman's guide to family law in England and Wales.
There is, of course, no substitute for expert legal advice (and this guide is certainly not one - see my Disclaimer in the sidebar). Sadly, however, legal aid is not available for most private family law matters, and as a result an increasing number of people are having to navigate the system on their own. This guide, or rather set of guides, is intended to help them.
Please note that this page is a work in progress - some sections are incomplete, and others may be expanded. However, I have published the page in this state, as it should hopefully already be useful to some.
If there are any words or phrases that you do not understand, you may find a definition in my Family Law Glossary.
Click to go to the appropriate guide.
[Note that this section sets out the new no-fault system of divorce, dissolution of civil partnership and judicial separation, which is due to come into effect on the 6th of April 2022, although the new system will not entirely replace the old - the one-year bar and the ground for divorce, for example, will remain as before.]
1.1 The law on divorce
1.1.1 The one year bar - An application for a divorce order may not be made before the expiration of the period of one year from the date of the marriage.
1.1.2 The ground for divorce - Either or both parties to a marriage may apply to the court for an order (a “divorce order”) which dissolves the marriage on the ground that the marriage has broken down irretrievably.
1.2 Procedure on divorce application
The divorce is commenced by an application to the court, accompanied by a statement by the applicant or the applicant and the other spouse that the marriage has broken down irretrievably. The court must accept that statement as proof that the marriage has broken down irretrievably.
If the application is made by one party only the other party will not have the opportunity to defend the divorce.
After 20 weeks from the start of the proceedings the applicant or applicants may confirm to the court that they wish the application to continue.
The court will then make a conditional divorce order.
After 6 weeks have elapsed from the conditional order the court may make a final divorce order.
1.3 Judicial separation
A judicial separation order "provides for the separation of the parties to the marriage". Whilst his has no effect upon the marriage status of the parties, it does have a bearing upon inheritance, as if while a judicial separation order is in force and the separation is continuing either party dies intestate then their estate will pass as if the other party to the marriage were then dead.
Judicial separation is a procedure usually used when the marriage has broken down but the petitioner has a religious objection to divorce. The primary purpose of obtaining a judicial separation order is to utilise the court's powers to grant remedies. Note, however, that the court does not have power to make pension sharing orders in proceedings for judicial separation.
Either or both parties to a marriage may apply to the court for a judicial separation order. An application must be accompanied by a statement by the applicant or applicants that they seek to be judicially separated. The court dealing with the application under subsection must make a judicial separation order.
1.4 Civil partnership dissolution and separation
The law and procedure on applications for civil partnership dissolution and separation orders is essentially the same as divorce and judicial separation.
[This section deals with disputes between parents regarding their children, where social services are not involved. These are known as 'private law' disputes.]
2.1 Parental Responsibility
2.1.1 Definition - Parental responsibility means "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." It includes the duty to maintain, the duty to educate, the decision to have medical treatment administered to the child, and the right to choose the child's name.
2.1.2 How parental responsibility is acquired - Where the parents are married, both automatically acquire it. Where they are not married, only the mother automatically acquires it. The father can acquire it by being registered as the father on the child's birth certificate, with the mother's agreement, or by obtaining a parental responsibility order.
2.2 Types of children orders
2.2.1 Child arrangements order - An order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person. May (for example) state that a child is to live with one parent and have contact with the other, but may also state that the child is to share its time between the parents.
2.2.3 Prohibited steps order - An order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. May be used, for example, to prevent a parent from removing the child from the country.
2.2.3 Specific issue order - An order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child, such as which school the child should attend.
2.2.3 Order restricting future applications - On disposing of any application for one of the above orders, the court may (whether or not it makes any other order in response to the application) order that no application for a further such order may be made with respect to the child concerned by any person named in the order, without leave of the court (sometimes referred to as a 'barring order'). This power is to be used sparingly, as a weapon of last resort in cases of repeated and unreasonable applications. The restriction may be for a limited time or, unusually, indefinite.
2.3 How cases are decided
2.3.1 The paramountcy principle - The law states that: "When a court determines any question with respect to the upbringing of a child or the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration." This is known as the 'paramountcy principle'.
2.3.2 The presumption of parental involvement - The court should presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
2.3.3 The welfare checklist - In deciding how the child’s welfare is best served the court will have regard in particular to the following factors, known as the ‘Welfare Checklist’:
• The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Accordingly, the older the child is, the more weight the court is likely to give to their wishes. The wishes of the child will normally be ascertained by the CAFCASS officer speaking directly with the child, and set out in their welfare report; rarely will a child be required to attend court. The amount of weight given to a child's wishes will depend largely upon the child's age: the older the child, the more weight the court is likely to give to the child's wishes. There is no 'cut-off' age beyond which the courts will follow the child's wishes, but it has been stated that, save in respect of medical treatment, orders which contradict "the wishes of normal children aged 16, 14 and 12 are virtually unknown to family law". On the other hand, it is unusual for the court to find the views of children under 10 to be conclusive.
• The child’s physical, emotional and educational needs, such as special health needs, or special educational needs. This can cover such matters as physical disability, long-term illness, special health needs and special educational needs. It also covers basic matters such as suitable housing, not just in terms of providing appropriate accommodation, but also in terms of location, especially if a move to a new area is proposed, taking children away from their friends and involving a change of school. Emotional needs can include an attachment to a particular parent, and ties with siblings.
• The likely effect on the child of any change in his or her circumstances, for example when the court is considering the possibility of the child moving to live with the other parent. This can be relevant to contact applications (for example where relationships have broken down or never developed due to lack of contact), but is most relevant to applications involving a change of residence, especially where there is considerable distance between the homes of the parents. Such matters as change of schools and moving away from friends can be particularly relevant. There is also the issue of changing long-standing arrangements: the 'status quo' argument: the longer an arrangement persists, the less likely the court is to alter it.
• The child’s age, sex, background and any characteristics of his or hers which the court considers relevant. It may be considered that a very young baby would be better off residing with its mother, but otherwise age is only likely to be relevant with regard to the child's wishes, as mentioned above. As to the child's sex, there is no presumption that a child will be better off residing with a parent of the same gender. Characteristics can include religious beliefs and particular interests that the child may share with one parent.
• Any harm which the child has suffered or is at risk of suffering. This can include emotional as well as physical harm. Obviously, if the child has suffered harm previously whilst in the care of one parent, whether by that parent’s actions or neglect, then this will be a very significant factor in any application. Witnessing domestic violence by one parent against the other can also be relevant under this heading.
• How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. This will cover not just parenting skills but also practicalities such as work commitments - if these necessitate the child being left with a carer or relative, then their capability of meeting the child’s needs also becomes relevant. Other relevant matters could be the health of the parents and whether they have any alcohol or drug abuse problems.
• The range of powers available to the court. The court has power to make orders other than those applied for, and therefore can make any order that it considers to be appropriate. It may also order that no further applications be made without leave.
2.3.4 The 'no order principle' - Where a court is considering whether or not to make one or more orders with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
2.4 Making an application to the court
2.4.1 Mediation Information and Assessment Meeting ('MIAM') - A first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. Before making an application to court all applicants must first attend a MIAM, unless they are exempt, for example where there has been domestic abuse.
2.4.2 The application - The application is begun by the filing of an application form, known as a 'C100' form, with the court.
2.4.3 The First Hearing Dispute Resolution Appointment (‘FHDRA’) - The first hearing fixed by the court. If the case cannot be agreed at this hearing the court will give directions as to what should happen next. These might include the fixing of a fact-finding hearing, to ascertain the truth about any allegations made by either party (for example allegations of domestic abuse), and the appointment of a CAFCASS officer to investigate the case and prepare a report, usually including a recommendation as to what order the court should make.
2.4.4 The Dispute Resolution Appointment - The next hearing, the purpose of which is to see if the case can be settled by agreement, rather than having to be decided by the court.
2.4.5 The final hearing - At which the court will hear the evidence and decide what order(s) to make.
2.5 Enforcing children orders
2.5.4 Fines and committal - Breach of a children order is a contempt of court, which may be punished by a fine or imprisonment.
2.5.2 Recovery of a child - Where a person is required by an order to give up a child to another person, and the court which made the order imposing the requirement is satisfied that the child has not been given up in accordance with the order, the court may make an order authorising an officer of the court or a constable to take charge of the child and deliver him to the other person. This includes authority to enter and search any premises where the person acting in pursuance of the order has reason to believe the child may be found, and to use such force as may be necessary to give effect to the purpose of the order.
2.5.3 Enforcement orders - If the court is satisfied beyond reasonable doubt that a person has failed, without a reasonable excuse, to comply with a provision of a child arrangements order it may, on the application of the other party, make an enforcement order, imposing on the person an unpaid work requirement.
2.5.4 Compensation for financial loss - If the court is satisfied that a party has failed, without a reasonable excuse, to comply with a provision of a child arrangements order, and the other party has suffered financial loss by reason of the breach, it may, on the application of the other party, make an order requiring the party in breach to pay the other party compensation in respect of their financial loss.
3.1 Types of financial remedy orders
3.1.1 Maintenance order - An order requiring one party to make regular payments to the other. Can be a spousal maintenance order or a child maintenance order, although the latter are usually dealt with by the Child Maintenance Service, if it has jurisdiction, unless the maintenance is agreed - see under Child Support. Unless specifically limited in time spousal maintenance usually lasts until the death of either party, the remarriage of the recipient, or further court order. Spousal maintenance may also be temporary, until the divorce is finalised (known as 'maintenance pending suit'). Maintenance orders may be secured against property belonging to the payer, to ensure payment.
3.1.2 Lump sum order - An order requiring one party to pay a limp sum of money to the other party. The lump sum may be payable in one go, or by instalments.
3.1.3 Property adjustment order - An order adjusting the ownership of property, for example transferring jointly owned property to one party, or adjusting the shares in the property. Most commonly used in connection with the former matrimonial home.
3.1.4 Pension orders - There are two types of pension order, the pension sharing order, which transfers all or part of one party’s pension into a pension belonging to the other party, and the pension attachment order, which states that one party will receive part of the other party’s pension, when the other party receives it.
3.1.5 Orders for sale of property - Where the court makes a secured maintenance order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest.
3.2 How cases are decided
3.2.1 The 'Clean Break'
Before exercising its powers to make a financial remedies order in favour of a spouse, the court is obliged "to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable". This is known as a 'clean break'.
Further, where the court decides in such a case to make a maintenance order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.
In addition, where on or after the grant of a divorce an application is made by a party to the marriage for a maintenance order in their favour, then, if the court considers that no continuing obligation should be imposed on either party to make or secure periodical payments in favour of the other, the court may dismiss the application with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for such an order.
A clean break may not be appropriate where there is insufficient capital available to compensate a party for the loss of maintenance. Thus, for example, a wife may be awarded maintenance in excess of her income needs, to enable her to build up capital.
3.2.2 Relevant factors - When deciding what financial remedy order to make the court will look at all of the circumstances of the case, in particular the following factors:
• The income, earning capacity, property and other financial resources of the parties. If there is evidence that a party can reasonably increase their income then the court can attribute to that party an earning capacity greater than their current income. Whilst the court will require each party to disclose brief details of any new partner's means, the court may not make an order that can only be satisfied by utilising a new partner's resources. However, the new partner's financial resources may be relevant, as they may reduce that party's needs, for example where that party shares outgoings with a new partner. Assets will normally be valued as at the date of the hearing, irrespective of when the parties separated.
• The financial needs of the parties, in particular their income and housing needs, including the housing needs of any dependent children. Usually referred to simply as "needs", this is often the decisive factor in determining a financial remedies claim, especially where resources are limited. Needs will usually take precedence over other factors; for example, as mentioned below, assets acquired after the parties separate may only be distributed differently to 'matrimonial property' to the extent that they they are not required to meet the needs of the parties. The basic needs are, of course, a sufficient income and suitable housing. The housing needs of the party with whom any children reside will take precedence, as first consideration must be given to the welfare of any child. The court will endeavour to meet the housing needs of the other party, especially if staying contact is envisaged, where assets permit. A new partner's financial resources may be relevant, as they may reduce that party's needs, for example where that party shares outgoings with a new partner. On the other hand, the new partner may increase that party's needs, for example where the new partner has children for whom they do not receive maintenance. Where appropriate, "needs" may include an element of compensation for 'relationship-generated disadvantage', for example where a wife gives up a lucrative career to bring up the family. The appropriate approach here may be to include the compensation within the quantification of the wife's needs, as 'generously assessed', rather than attempt to quantify the compensation separately.
• The ages of the parties. Where the parties are young and there are no children the court is more likely to impose a clean break. Age will also have a bearing upon the ability of the parties to raise a mortgage, and the amount of mortgage that they can raise. It will also have a bearing upon the amount of pension provision that a party can accumulate for themselves. Obviously, where one or both of the parties is over retirement age this is likely to have a considerable bearing upon the settlement. Even approaching retirement age can be a factor, for example with regard to a party's ability to find work.
• The duration of the marriage. If the marriage is very short and childless then it may be appropriate for the court to simply return the parties to the position each was in prior to the marriage. Even if this is not appropriate (for example where considerable assets were accumulated during the marriage), the court is more likely to depart from equal division, leaving assets in the hands of the party who generated them. Where there are children then the fact that the marriage was of short duration is unlikely to have much bearing. Where the marriage was a long one (a marriage that lasted ten years or more is considered to be a long marriage) then, by the same token as above, equal division is more likely to be appropriate. Pre-marriage cohabitation is obviously not included in the duration of the marriage, but may be considered as one of the circumstances of the case.
• Any physical or mental disability of either of the parties to the marriage.
• The financial contributions of each party to the marriage, in particular any wealth that a party accumulated prior to the marriage. As to financial contributions during the marriage, there is a general principle of non-discrimination between the different roles assumed by each party during the marriage, for example 'breadwinner' and 'homemaker'. Thus, for example, a wife's contribution by looking after the home and bringing up the children may equal her husband's financial contribution. The courts have, however, recognised that there are occasions where one party has made a "special contribution", such that an equal division of assets would be inappropriate, although to date this has only occurred in 'big money' cases, in relation to financial contribution.
• The conduct of the parties, but only if it is of a very serious nature. Conduct is often raised but, in practice, rarely has any bearing upon the settlement. To have a bearing, the conduct must be "both obvious and gross", i.e. considerably more serious than the 'usual' 'misconduct' (including adultery) involved in the breakdown of many marriages.
• Loss of benefit: The value to each of the parties to the marriage of any benefit which, by reason of the dissolution of the marriage, that party will lose the chance of acquiring, for example benefits under the other party's pension.
3.2.3 The sharing principle - As a general guide, an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is good reason for doing so, for example because the needs of one party are greater than the needs of the other. This is known as the 'sharing principle'.
3.2.4 The concept of 'matrimonial property' - Assets acquired during the marriage, through the joint efforts of the parties to the marriage, are known as 'matrimonial property', and therefore fall to be divided between the parties on divorce. Other assets, such as assets acquired before the marriage, inheritances/gifts and assets acquired post-separation are considered to be 'non-matrimonial', and will, in general, only be shared with the non-owning party if that is required to meet their needs.
3.3 Making an application to the court
3.3.1 Mediation Information and Assessment Meeting ('MIAM') - A first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. Before making an application to court all applicants must first attend a MIAM, unless they are exempt, for example where there has been domestic abuse.
3.3.2 The application - The application is begun by the filing of an application form, known as a 'Form A', with the court. The court will then set out a timetable for the parties to take certain steps, in particular to prepare a statement ('Form E') setting out details of their finances.
3.3.3 The First Directions Appointment - The first court hearing in financial remedy proceedings. Used by the court to give directions as to the future conduct of the proceedings, including the filing of evidence and further hearings.
3.3.4 The Financial Dispute Resolution appointment ('FDR') - A hearing within an application for financial remedies, at which the parties should use their best endeavours to settle the matter by agreement, with the help of the court.
3.3.5 The final hearing - At which the court will hear the evidence and decide what order(s) to make.
3.4 Consent Orders
When the parties agree a financial remedies settlement they should apply to the court to have the settlement incorporated into a consent order, to ensure that the settlement is final and binding.
The procedure is to draft the order and send it to the court with a Statement of Information, setting out details of the parties' means.
Note that the court is not obliged to make the order, simply because its terms are agreed. The court will only make the order if it is satisfied that the terms are broadly reasonable.
3.5 Enforcing financial orders
There are various methods of enforcing financial remedy orders, including:
3.5.1 General enforcement application - Where the order is for the payment of a sum of money, the creditor may make a general enforcement application, seeking 'such method of enforcement as the court may consider appropriate'.
3.5.2 Third party debt order - Directs a third party who owes money to the debtor (e.g. the debtor's bank) to pay the debt directly to the creditor.
3.5.3 Charging order - Used to enforce payment of a debt. Secures the debt against the debtor's home, or other property they own. The creditor can then apply for an order that the property be sold.
3.5.4 Execution against goods - Requires the court bailiff to attend the debtor's premises and seize goods to the value of the sum due. the goods will be sold and the proceeds used to pay the debt.
3.5.5 Attachment of earnings order - Method of enforcement of (usually) maintenance orders or child support, whereby the debtor’s employer is required to deduct a regular sum of money from the debtor’s earnings.
3.5.6 Judgment summons - Where a party is in breach of a maintenance or lump sum order the court can commit them to prison for contempt of court if the court is satisfied that the party has, or has had, since the date of the order the means to pay and has refused or neglected, or refuses or neglects, to pay.
3.5.7 Enforcing Orders for Transfer or Sale of Property - Where a party refuses to obey an order to transfer a property, usually the former matrimonial home, to the other party application may be made for an order that the conveyance or transfer be executed by a district judge instead of the transferring party.
Where there is an order for sale of property, and one party refuses to cooperate with the sale by refusing to give up possession of the property, then an application may be made for an order that that party deliver up possession to the purchaser or to whomever the court directs, to allow the sale to proceed.
3.6 Variation of financial orders
3.6.1 Orders that can be varied - Generally, only orders of an income nature, such as maintenance and pension attachment orders, can be varied (the order may be increased, decreased, extended (unless it was limited in time), stopped or capitalised (see below)). The main capital orders that can be varied are lump sum orders payable by instalments and orders for the sale of property. A pension sharing order can be varied before the final divorce order.
3.6.2 Relevant factors - When considering whether to vary an order the court will have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates.
3.6.3 Capitalisation of maintenance orders - The court may 'capitalise' a maintenance order, by replacing it with a lump sum order, a property adjustment order or a pension sharing order.
4.1 What is domestic abuse?
Domestic abuse is an incident or pattern of incidents of controlling, coercive, threatening, degrading and violent behaviour, including sexual violence, in the majority of cases by a partner or ex-partner, but also by a family member or carer. A victim of domestic abuse may apply to the Family Court for non-molestation and/or occupation orders.
4.2 Non-molestation order
A court order prohibiting one party from molesting, harassing or pestering the other party.
In deciding whether to make a non-molestation order and, if so, in what form, the court will have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant and of any relevant child.
A non-molestation order may be made for a specified period, or until further order.
4.3 Occupation order
An order requiring a party to vacate or not to return to the matrimonial home (or, in the case of an unmarried couple, the home in which they both lived).
In deciding whether to grant an occupation order the court will consider all of the circumstances of the case, including the housing needs and resources of both parties and any children; the financial resources of both parties; the likely effect any order, or not making an order, will have on the parties and any children; and the conduct of the parties in relation to each other.
4.4 Domestic Abuse Protection Notices and Orders
A domestic abuse protection notice, which may be given by a senior police officer, prohibits the person to whom it is given from being abusive towards a person aged 16 or over to whom they are personally connected. A person breaching the Notice may be arrested and taken before a magistrates’ court.
A domestic abuse protection order prevents a person from being abusive towards a person aged 16 or over to whom they are personally connected, by prohibiting them from doing things described in the order, or requiring them to do things described in the order. The order may be made on application to a court, or by the court of its own motion. The court may impose any requirement it considers necessary to protect the victim, including requiring the abuser to submit to electronic tagging. Breach of an order is a criminal offence.
4.5 Legal aid
Legal aid is available for domestic abuse applications, subject to means.
5.1 Financial provision for children
On an application made by (amongst others) a parent the court may make an order for financial provision for a child, including a maintenance order, a lump sum order, and a property settlement order, whereby the other party must provide a home for the child (the property will normally revert to the ownership of the other party, once the child has grown up).
5.2 Property disputes
Property disputes between cohabiting couples are usually dealt with under the Trusts of Land and Appointment of Trustees Act 1996, which may be used to request the court to determine shares in the property, and whether or not the property should be sold.
A cohabitant living in a property owned by their partner may seek to acquire an interest in the property under a trust of land. A trust of land is an arrangement whereby the true ownership of land differs from that stated on the deeds. The owner(s) stated on the deeds (the owners of the ‘legal estate’) are said to hold the property on trust for the true owners, who are said to hold an ‘equitable’, or ‘beneficial’, interest in the property. The cohabitant may claim to have acquired an equitable interest in the property, for example because of contributions that they have made to the property.
2. Collect & Pay - Used when parents cannot arrange payments between themselves, or if the paying parent does not keep up with payments. The CMS will collect and manage payments between the parents