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 Divorce, Dissolution and Separation Act 2020 introduced a minimum period of 6 months for a marriage to be dissolved.
  
  
• The only ground for divorce is the irretrievable breakdown of the marriage, and under the Divorce, Dissolution and Separation Act 2020, it is no longer necessary to establish this by using one of the 5 facts of adultery, behaviour, desertion, two years separation with consent or 5 years separation. Parties wishing to divorce must now simply state that their marriage has broken down irretrievably.
  
  
• Divorce proceedings cannot be commenced within the first year of marriage.
  
  
• A divorce will now take a minimum of 6 months. There is now a mandatory 20 week waiting period between the issue of the divorce application and the next stage of the divorce (Conditional Order, previously Decree Nisi). There is a further mandatory 6 week waiting period between the Conditional Order and the Final Order (previously Decree Absolute).
  
  
• There are sometimes good reasons to delay the Final Order (previously 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.
  
  
• The only basis upon which you can now defend a divorce is when there are already existing divorce proceedings in another country, or if there are questions as to the validity of the marriage itself.

Children

• Orders can be made about children of the family who are:
  • The children of the marriage;
  • The children of the relationship in the case of unmarried parents
  • The children of one of the parties who are accepted into the married family.

• All rights and responsibilities in respect of a child are known as parental responsibility. Parental responsibility includes the right to decide matters such as choice of education, the right to consent to or withhold medical treatment, to choose the religion in which the child is to be brought up, to give consent to the marriage of a 16 or 17 year old and to give consent to adoption etc. A child’s mother always has parental responsibility for the child, however, sometimes a child’s father does not have parental responsibility.

• Since 22 April 2014 terms like “custody”, “joint custody”, “care”, “control” “residence” and “contact” have no longer been used. There is now a new single Order called a Child Arrangements Order.
  
  
• A Child Arrangements Order is an Order that regulates arrangements for a child that relate to any of the following:-
  • With whom the child is to live, spend time or otherwise have contact;
  • When the child is to live, spend time or otherwise have contact with any other person.

Personal Protection and Non-Molestation Orders/Occupation Orders

• These are known loosely as injunctions and can be applied for if the behaviour of one or both of the parties makes this necessary. A person can apply for an injunction if they are “associated” with the other party.
  
  
• A Non-Molestation Order prevents one person from pursuing a course of conduct against the other person or a child that is of a violent, intimidating or harassing nature.
  
  
• An Occupation Order regulates which party is allowed to occupy the family home where there has been domestic abuse.
  
  
• Powers of arrest can be attached to Orders made. Often undertakings (promises) are given by one or both of the parties to the Court instead of making a formal order.
  
  
• If the Occupation Order or Non-Molestation Order 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

• Financial Court proceedings deal with financial matters relating to married couples and those in civil partnerships.
  
  
• Proceedings can only be commenced once an application for divorce, judicial separation or nullity has been filed.
  
  
• If the parties have made a pre-nuptial agreement, this might be relevant in whole or in part.
  
  
• A Court can make Financial Orders as to:-
  • Maintenance, both spousal and child maintenance, subject to the Child Maintenance Service jurisdiction for children;
  • Lump Sum Orders, if there is cash available;
  • Property Adjustment Orders – changing the previous ownership and including an Order for sale if appropriate;
  • Pensions – usually a Pension Sharing Order but not necessarily an equal division.

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

• There is no such thing as a “common law” marriage. You are either married or you are not married. Unmarried couples do not acquire any of the same rights as married couples, irrespective of length of cohabitation.
  
  
• There is no duty on either separating partner to maintain the other.
  
  
• Unmarried partners cannot commence matrimonial proceedings or apply for financial relief.
  
  
• Unmarried partners or partners who have not entered into a civil partnership do not have home rights.
  
  
• A Court can make Orders about the children of separating partners – the test is the welfare of the children as always.
  
  
• The Child Maintenance Service 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
  
  
• Where an unmarried couple have children together, the party with the majority care of the children may be able to make an application under Schedule 1 of the Children Act 1989 for financial provision from the other party for the benefit of the children. This could be a lump sum of money, housing provision, or costs for education.

Adoption

• The Adoption and Children Act 2002 embodies the law on adoption. 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 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 Courts can make a Step Parent Responsibility Order or even a Special Guardianship Order.

Adoption is an area of law in which Ward Gethin Archer are unable to provide advice. For specialist advice it is recommended that you contact the Law Society who can assist and advise upon local solicitors who can offer such assistance.

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” have 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 issue 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 merit tested.
  
  
• Adoption proceedings can be linked to care proceedings.

• Ward Gethin Archer often represent clients who wish to make a Special Guardianship Application in respect of a child. If the Local Authority are in support of your application they will often provide funding to enable you to apply to the Court. Please contact us today to see how we can help you.

Ward Gethin Archer do not offer Legal Aid and you will need to obtain specialist advice from a Legal Aid solicitor. It is recommended that you contact the Law Society who will be able to advise you of a local Legal Aid solicitor.