Family Law

The workings of the Family Court.

Family Law

Family law deals with a wide range of issues relating to the family, including marriage, separation, divorce and its implications, such as the division of matrimonial assets, maintenance and the arrangements for children. These issues are generally dealt with in the Family Court. There is now a single family court for each geographical area, and the old family proceedings and family county courts are no more. Cases are heard by magistrates, district and other judges of all levels in the same building.

 

The overriding objectives of the Family Court

The Family Court has an overriding objective of dealing with cases justly having regard to any welfare issues involved.

So far as is practicable, dealing with a case justly includes,

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

The court must seek to give effect to the overriding objective when it exercises it powers and the parties to a case are required to help the court to further these overriding objectives.

The court must further the overriding objective by actively managing cases and

(a) setting timetables or otherwise controlling the progress of the case;

(b) identifying at an early stage–

(i) the issues;and

(ii) who should be a party to the proceedings;

(c) deciding promptly –

(i) which issues need full investigation and hearing and which do not; and

(ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

(e) controlling the use of expert evidence;

(f) encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(g) helping the parties to settle the whole or part of the case;

(h) encouraging the parties to co-operate with each other in the conduct of proceedings;

(i) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

(k) dealing with the case without the parties needing to attend at court;

(l) making use of technology; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.

 

Acting for yourself in Family Proceedings

Legal aid for private family cases has been all but removed and it is now the norm for parties to represent themselves before the court. The exceptions are in child protection cases, where domestic violence is shown, and to assist parties to reach an agreement through mediation.

In straightforward cases it is quite possible for most people to deal with a divorce or relationship breakdown themselves, but before making any decisions they should be aware of the legal position and their legal entitlements. In certain circumstances, however, legal help and advice may be necessary. This will be especially the case:

  • where the matrimonial assets are substantial, and include pension rights, a business etc;
  • where it is suspected that your spouse is hiding and not disclosing assets;
  • where domestic violence makes direct discussion impossible;
  • where there is domestic violence and an application to the court may be necessary for your protection.

There is one firm principle when a relationship breaks down. That is to try and agree everything with your spouse or partner beforehand. If you need help doing this, consider mediation. The alternatives to not agreeing everything can be expense, delay and bad feelings.

The first thing to think about should always be the children. What arrangements are to be made for their future care and how are they to be protected and reassured when their parents break up. Divorce and separation does not affect parental rights and obligations, and it is only when parents cannot agree the arrangements that the court will need to make an order. Our Children pages have comprehensive further information including on he Child Arrangements Programme where child arrangement orders are made replacing the old system of residence and contact orders.

The intention is to make the court the process of last resort and encourage parties to resolve issues themselves outside of court proceedings. There is therefore a requirement of compulsory attendance at a mediation information and assessment meetings (MIAMs) prior to court proceedings being issues in children and financial cases.

 

If you are married, there are three separate but connected things to deal with and try to agree:

  • the divorce. This is fully dealt with in our Divorce section.
  • money and property. How this is to be divided and whether a clean break is appropriate. Can a consent order be obtained? This is covered in our financial settlements on divorce section.
  • the children. We have a separate section dealing with issues relating to children on divorce and separation.

If you are not married, all you have to do once you have sorted out money and property matters and made arrangements for the children is separate.

 

Our Family Law section explains the interaction between the law in England and Wales and family relationships. It explains the role of the law and how it can assist when problems arise within a family. There are sections on dissolving a marriage, resolving property and financial issues when a marriage or civil partnership breaks down, and how the law relates to those who live together without marrying. Disputes and issues relating to children are dealt with, and you will also find here information on domestic-violence. There are family agreements to download including pre-nuptial, separation agreements and cohabitation agreements.

We have a collection of e-books and law guides to download, ranging from Divorce without Court to Making a Parenting Agreement, and including comprehensive guides to the Divorce Law and Procedure and how the court deals with disputes over children.

 

Family Law Articles

Restraining Orders. The Facts.

Restraining orders are injunction orders made by a criminal court-usually a magistrate court-to protect the victim of criminal behavior by forbidding the perpetrator from continuing their course of action. A restraining order can be for any length of time or even run...

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Co-respondent to a divorce petition?

Co-Respondent If you have been named as a co-respondent in a divorce petition brought by someone's spouse you will need to decide what to do. Obviously you are being partly blamed for the breakdown of a marriage. They are angry and some of that anger is being directed...

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Divorce mistakes

Things can go wrong with a divorce through mistakes even where it seems there is agreement that the marriage is over and there is no dispute over who gets what. There are a number of mistakes which are commonly made which can lead to problems.  We signpost them here....

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Dealing with CAFCASS

CAFCASS reports A judge who has asked CAFCASS to prepare a report advising the court on what is in a child’s best interest is going to be heavily influenced by the report which the CAFCASS officer prepares. They are not bound to follow a CAFCASS recommendation but...

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Should you go for a DIY Divorce

DIY Divorce How practical is a DIY Divorce? Would money saved now by doing your own divorce cost you heavily later on? For most people the answer is that a Do It Yourself Divorce is quite possible especially if: • You and your spouse have agreed everything. This will...

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Moving away with the children

It can be devastating if your ex or former partner intends to move away and take your children with them. When a family breaks up the parent with whom the children live will sometimes wish to move away and relocate with the children miles away from the other parent....

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Separated but not divorced – types of separation

Separation When spouses are not living together they may consider themselves separated - but what does that mean in the eyes of the Law? How the Law and a court looks upon a separation when a couple separate but do not divorce can depend upon the type of separation...

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Tips for an amicable divorce

Divorce may never be easy but it doesn't have to be stressful, expensive and time consuming. If you approach it in the right way it may not be a pleasant experience but it can certainly be made less painful. Here are some tips for an amicable divorce. 1. Don't seek...

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Varying spousal maintenance orders

Spousal Maintenance Orders for maintenance (or periodical payments) can always be varied, suspended or discharged on the grounds of changed circumstances (Matrimonial Causes Act 1973 section 31). The basis of an application to vary a maintenance order is therefore a...

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Lost decree absolute

If you are getting remarried or have to prove your marital status for whatever reason you will have to show an original decree absolute as proof that you got divorced. If it has been lost, destroyed with all other reminders of a past life, or you simply can't find it,...

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Is no fault divorce on the horizon?

Our divorce law dates from 1973. It has been 43 years since there have been any substantial changes to the law. Now as then, you have to show by way of the 5 facts that your marriage has irretrievably broken down. One spouse has to allege adultery or unreasonable...

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Freezing Orders

Freezing Injunctions On the breakdown of a marriage or civil partnership, a freezing order can be made to prevent one party from disposing of assets before the financial issues have been resolved in order to reduce what the other party might receive as a settlement....

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