Family Law

What is family law?

Family law constitutes three dominant practice areas of law: matrimonial, finance or child law. Lawyers act on matters including divorce and separation, child contact and arrangements, local authority care orders and financial settlements. It is possible to have expertise in other practice areas including inheritance, housing, immigration or finances.?

Legislation?

Matrimonial Causes Act 1973

Children Act 1989

Family Law Act 1996

Adoption and Children Act 2002

Civil Partnership Act 2004?

Family Law Act 1996

Part I Marriage and Cohabitation - Formation of marriages. The rights and responsibilities of cohabiting couples. Consider legal agreements before entering into relationships.?

Part II Domestic Violence - Protections offered to individuals experiencing domestic violence. Exploring the definition of ‘abuse’. Non-molestation orders and occupation orders. Strengthens court powers.?

Part III Financial Relief - Simplified financial relief procedures after marital breakdowns. Consider relevant factors in financial settlements.?

Part IV Child Support - Child support and maintenance. Provisions for determining the financial liability of absent parents. Establishment of the Child Support Agency to oversee collection and enforcement of child support payments.?

Cases

White v White [2000] UKHL 54 - Financial settlements in divorce cases. The House of Lords established the principle ‘equal division of matrimonial assets’. Equal contribution of parties to marriage and rejecting gender-based discrimination.?

Re G [2006] UKHL 43 - The House of Lords established that a child’s welfare is more important than biological or genetic connections between a child and an adult. The House of Lords gave greater importance to the relationship and attachment between a child and a non-biological mother in same-sex relationships.?

Re F [2015] EWCA Civ 882 - International child relocation disputes. The Court of Appeal highlighted that the child’s welfare must be the paramount consideration. Factors to be considered include the child’s relationship with both parents and the ability of relocating parents to provide a stable environment.?

Sharland v Sharland [2015] UKSC 60 - The Supreme Court ruled that a spouse’s fraudulent misrepresentation of financial circumstances during a divorce settlement could result in renegotiation of the financial agreement.?

Owens v Owens [2018] UKSC 41 - The Supreme Court upheld a decision that a married couple must remain together despite the wife's wish to pursue a divorce. The husband's unreasonable behaviour did not meet the threshold for the unreasonable behaviour ground for divorce. Influence ongoing debate on ‘no-fault divorce reforms’.?

Family Court Process

APPLICATION:?

• C100 form?
• Supplemental form C1A = if you or your child has suffered any harm from domestic violence, abuse, child abduction, and harmful conduct.?
• Pay the relevant court fee or complete form EX160?

CAFCASS:

• Children and Family Court Advisory and Support Service?
• Provide judges with advice, information and recommendations to reach a safe decision for the child.?
• Child Arrangements order - Cafcass will carry out background safeguarding checks before the first hearing and report to the court to highlight safety issues.?

FIRST HEARING: First hearing dispute resolution appointment. Consent order to set out the agreement between both parties. The judge may ask for mediation or further time by adjourning the hearing. If additional information is needed there may be further hearings - file statements or request reports.?

ALLEGATIONS OF HARM AND DOMESTIC VIOLENCE: The court has to consider whether or not the violence or harm affects the decision that the court has to make. Fact hearing, looking at the evidence and deciding whether the alleged abuse has happened. The court's order should take into account other issues - the perpetrator attending a domestic violence programme and how children have been affected by the behaviour.?

FINAL HEARING: May be required to give oral evidence, take oath or affirm to tell nothing but the truth. The judge will summarise what you have said and what the other party has said. Give a decision on what should happen with the child's future.?

URGENT COURT ACTION: Without notice application by not letting the other parent aware of this. Have to prove that the other parent knows would do one of the following. Take steps to defeat the purpose of the application. They would not be safe. Exceptional urgency, no time to give notice.?

APPEAL: Appeal in limited circumstances such as not following legal procedure or a serious mistake has been made. Appeal must be done within 21 days of the decision. You need the court's permission to appeal, a request from the judge who made the decision. Appeals can be costly.?

Alternatives to the family court

Alternative dispute resolution includes mediation, collaborative law and family arbitration.?

MEDIATION: It is not appropriate to issue harm concerning the child such as allegations of sexual or physical abuse. Imbalance of power within the relationship, disability or because English is not one's first language. Mediation is a voluntary process for discussions to take place with a trained mediator to reach an agreement. It is private and confidential for agreements to be reached. The agreement is not legally binding so it is flexible to suit parties. An agreement reached through mediation can become legally binding by the terms made into a consent order. It is a legal document drawn up by a solicitor setting out agreed mediation terms before being approved by a judge. Full financial disclosure is required to ensure a fair outcome to resolve finances.?

COLLABORATIVE FAMILY LAW: Resolve finances further to divorce or child arrangements. Negotiating with a partner in face to face meetings or correspondence. An agreement may result in a consent order. Expensive process. If there is an element of domestic abuse resolving financial or child matters would not be appropriate.?

FAMILY ARBITRATION: A legally trained person makes a decision that should be impartial. It is legally binding if the correct process is followed. The arbitrator's role is to consider evidence in the case and apply the law to decide on financial splits. A consent order should be submitted to the court.?

Parental Responsibility?

Children Act 1989 rights, duties, powers, responsibilities and authorities which by law a parent of a child has about the child and its property.?

WHO?

• Mother = biological mothers have it automatically
• Married fathers = at the time of birth or marry the biological father after the birth
• Unmarried fathers = born before 1st December 2003 he does not automatically have parental responsibility?
• Lesbian couples = conceived by artificial insemination on or after 6 April 2009, civil partner automatically has parental responsibility. Same-sex spouses and children conceived by artificial insemination will automatically have parental responsibility.?

DECISION MAKING:

• Where a child should live
• Education
• Health and Medical treatments?
• Changing a child's name?
• Religion
• Going abroad - permanently or on holiday?

NON-PARENTS: Non-biological parents can acquire parental responsibility for a child if they adopt. Adoption order gives them parental responsibility. Guardian of the child. Appointment made in writing (signed and dated) or in a will. Child arrangement order stating that the child is to reside with them. The court makes a special guardianship order. Local authorities, and courts making a care order emergency protection order or interim care order.?

Children and the Law: Parents Separation

SEPARATING PARENTS - Where the children will live, how often the children will see the other parent, child maintenance, schooling and education. Flexible to meet the needs of the child. Children consult anyone with parental responsibility for the child.?

DOMESTIC VIOLENCE - Domestic violence includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse. Controlling behaviour acts or patterns of acts designed to make a person subordinate or dependent by isolating them. A third person can be used to exchange the visitation of the child - contact centres. Staff can watch the family, take notes and provide reports if necessary (supervised contact).?

CHILD ARRANGEMENTS ORDERS - It sets out who the child will live with and when. Who the child will spend time with or have contact with, and when. Direct contact by being face to face, or supervised by a suitable person or at a contact centre. Indirect contact by letters and cards. The court can make an order to see the parent for a specified number of hours. If you are the named person with whom the child lives then you acquire parental responsibility. The court can add conditions or activity directions. Enforcement order to undertake unpaid work or imprison the parent for failing to comply with the court.?

SPECIFIC ISSUE ORDERS - The court makes when two people have parental responsibility but cannot agree on an important decision for the child. Child's education, religion, health or surname.?

PROHIBITED STEPS ORDERS - The court forbids a person who has PR for a child from taking certain actions. Forbidding your child's other parent or another person to remove the child from your care or school, take them abroad, bring your child into contact with certain people or change their surname.?

Domestic Violence and Practice Direction 12J

PRACTICE DIRECTION 12J: Family procedure rules. How the court should deal with family cases.?

DEFINITIONS:?

• DOMESTIC ABUSE = Incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse.?
• ABANDONMENT = Husband deliberately abandons or strands his foreign national wife abroad to prevent her from asserting matrimonial or residence rights in England and Wales.?
• COERCIVE BEHAVIOUR = Act or pattern of acts of assault, threats, humiliation and intimidation that is used to harm, punish or frighten the victim.?
• CONTROLLING BEHAVIOUR = Act or pattern of acts designed to make a person subordinate or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gains.?

RAISING ALLEGATIONS: The court has the responsibility to determine whether domestic violence is an issue in the case. Form C1A. Speak to the Cafcass Officer before the first hearing, inform them you have experienced domestic violence and refer to your Form C1A. Before each hearing you should prepare a position statement, summarises for the court to hear about the application.?

COURT:?

• CAFCASS REPORT = Before the first hearing, Cafcass should contact you and the father to discuss the application. Safeguarding checks. Contact social services and police to see if they have been involved with the family.?
• SPECIAL MEASURES = Practice Direction 12J the court must ensure that appropriate arrangements are made for the hearing and subsequent hearings. The court can provide you with a separate waiting room, and limit contact with the other party, not in front of the judge. Ask for the other party to remain in the building for a certain period after you have left. There can be a screen placed in between you both. Attend the hearing via video or live link. Form C7, telephone the court a few days before to ensure that the special measures are in place.?

FACT-FINDING HEARING?

• Views of the party and Cafcass
• Admissions by the party
• Part in receipt of legal aid = evidence used
• Factors are decided without a fact-finding hearing
• Nature of evidence to resolve disputed allegations?
• Separate fact-finding hearing would be necessary and proportionate in the circumstances of the case

Child Maintenance

Schedule 1 Children Act 1989

Apply to the court for maintenance payments, a lump sum or transfer of property into your sole name. The court will consider the circumstances including the welfare of the child.?

Income, earning capacity, property and financial resources of parties now and in the future. The financial needs, obligations, and responsibilities of the parties now and in the future. The financial needs of the child.?

The income, earning capacity, property and other financial resources of the child. The physical or mental disability of the child. How the child is or is expected to be educated or trained.?

Court Decisions?

• Child's wishes and feelings - dependent upon their age or understanding of the situation?
• Physical, emotional and educational needs
• Change in circumstances - looking at previous or existing arrangements. How disruptive is it to the child??
• Characteristics - age, sex, background, disabilities, cultural or religious needs.?
• Harm suffered - physical, sexual or emotional abuse. Domestic violence the child has seen or heard.?
• Capability of parents - meeting the child's needs. Skills considered to look after the child. Impairment by either drink or drugs.?
• Court powers

Until the next Legal Thought,

Elicia Maxwell