Divorce

Question 1

What makes a good Family Solicitor?

Answer 1

Being able to accurately advise client on the law
Emotional intelligence
understanding of the stages of grief in a relationship breakdown
appreciation of the damage that can be done to children from parental dispute.

Question 2

Family Procedure Rules 2010

Answer 2

FPR 2010

Question 3

FPR 1.1 (1)

Answer 3

Overriding objective
enable the court to deal with cases justly, having regard to any welfare issues involved

Question 4

FPR 1.1(2)

Answer 4

details of what dealing with a case justly includes
The court must give effect to the overriding objective and the parties must help the court to further it (FPR 1.2 and 1.3).

The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.

Question 5

FPR 1.4

Answer 5

court must further the overriding objective by actively managing cases

the emphasis is on active case management and includes setting timescales, supervising the progress of the case, controlling the use of expert evidence and encouraging the parties use of non- court dispute resolution where appropriate.
The focus is on quick and efficient resolution of cases with a view to keeping delay to a minimum.

Question 6

Family Court

Answer 6

District judge
a circuit judge
lay justices (magistrates)

the level of the judge will be dependant on the nature of the case and the issues involved.

It is possible for certain cases to be transferred to the High Court where appropriate, but for the most part the majority of cases are dealt with by the Family Court.

Question 7

Matters to be considered at the first interview

Answer 7

clients details

clients non legal needs eg therapy IFA

screening for issues such as domestic abuse

signpost client to alternative forms of dispute resolution

options in relation to funding - legal aid / private funding

clients objectives

Question 8

Different types of relationships

Answer 8

Marriage
civil partnership
Cohabitation

Question 9

Marriage

Answer 9

– Until recently, between a man and a woman
– Marriage (Same Sex Couples Act) 2013 enabled same sex
couples to get married.

Question 10

Civil Partnerships

Answer 10

– Civil Partnership Act 2004 enabled gay couples to enter a legally
recognised union for the first time in the UK;
– Initially only available to same sex couples
– 31 December 2019 civil partnerships became available to opposite
sex couples.

Question 11

Cohabitation

Answer 11

Not a legally recognised partnership

Question 12

checklist

Answer 12

1. understand the role of a family solicitor and the content of the first interview with the client;
2. Appreciate the importance of non-court dispute resolution within the family justice system;
3. Identify the potential bars to divorce/dissolution; and
4. advise a client on the law and procedure in relation to
   divorce / dissolution.

Question 13

Non-Court Dispute resolution

Answer 13

Mediation
Arbitration
Collaborative Law
Solicitor negotiation

Question 14

Advising a client on Non-Court dispute resolution

Answer 14

1. Identify the most effective dispute resolution procedure
   2.consider the individual situation of client
2. consider the decision in light of the family context

advise on non-court dispute resolutions available first.

In the Family justice system non-court dispute resolutions play a critical part in keeping families out of the court system.

Question 15

Why you should consider NCDR (non court dispute resolution)

Answer 15

FPR 2010 encourages parties to resolve disputes without relying on the court.

FPR 3.3 (1) imposes a duty on the court to consider it at every stage of the proceedings. The court expects parties to do the same.

The family Court is in crisis and is overwhelmed by a case load it can’t keep up with. This leads to long delays which in turn can have a negative impact on the families involved.

There are clear benefits to keeping families out of the court system. There is a significant body of research to show they have better long term outcomes, especially where children are involved.

Question 16

Mediation

Answer 16

Voluntary process whereby an independent, impartial third party the family mediator helps couples to make decisions and reach an agreement without the need for court and solicitor

party interactive model of ncdr

confidential process, allowing clients t discuss options safe in the knowledge that such discussions cannot later be referred to in court or in open correspondents.

option of child involvement - Child Inclusive Mediation - children of suitable age can have their feelings and wishes heard

Question 17

Advantages of Mediation

Answer 17

quicker and cheaper than court and the savings both in cost and emotional trauma are indisputable

discussions can be tailored to the clients individual needs and are not constrained by the limits of the courts authority.

focus of the M is the family rather than their legal rights alone, particularly important where children are involved.

In contrast to court or a more formal legal route there is a greater opportunity to get involved in the process and give clients (and sometimes children) their say. The primary aim of the mediation is to help the parties arrive at their own decisions, which in turn makes it more likely that they will stick with the arrangements agreed.

It helps foster a future relationship which is particularly important where children are involved and parents have a continued need for effective communication.

Question 18

Solicitor negotiation

Answer 18

Solicitor negotiation is often over-looked as a form of non-court dispute resolution, however it involves an active desire to avoid court if possible, and so shares this fundamental feature with the other methods discussed here.

Solicitor negotiation involves both parties appointing a solicitor who will then act on their behalf and engage in direct negotiations with their opposite number in respect of their client’s dispute.

Solicitor negotiation can be either directly between parties at face- to-face meetings, or in solicitor’s correspondence.

Like collaborative law it is a lawyer-led process which has the benefit of providing necessary support, guidance and advice during a difficult process.

The downside of solicitor negotiation can be the costs involved. There is also a risk that in using solicitor’s parties are putting up unnecessary barriers which impede communication between them. This is particularly relevant where children are involved and there is the need for an ongoing relationship as co-parents.

Question 19

Collaborative Law

Answer 19

Collaborative law is a form of dispute resolution specifically used in family cases. It involves the parties each appointing a collaboratively trained solicitor to act for them.

Instead of the solicitors conducting the case through correspondence or litigation, the parties and their respective solicitors meet for a series of four-way meetings to try and resolve the case.

Like mediation it is voluntary process and both parties need to be committed to its success. To illustrate this both the parties and their representatives enter into an agreement at the outset that the solicitors instructed in the collaborative process will not continue to act for their clients if the process is unsuccessful and subsequent proceedings are commenced.

Many of the benefits of mediation apply to collaborative law in that they are both party interactive processes, so it allows the parties to have a say in how discussions proceed. It also helps prevent issues spiralling out of control

It also has the added benefit of giving the client another ‘ally’ in the room when entering the discussions as they will always have their solicitor by their side at the four-way meetings. This can be particularly useful if there are concerns about disparity or a power imbalance or if one party is vulnerable in some way.

However, one of the main issues with collaborative law is cost. As a lawyer led process (as well as party interactive) it has become a very expensive model of non-court dispute resolution and as such is only appropriate where there are significant assets involved.

Question 20

Arbitration

Answer 20

Family Arbitration is a formal procedure by which an impartial, independent 3rd party decides the outcome of a dispute between the two parties. It involves the arbitrator hearing the evidence and then handing down a binding decision. It is different from the other three methods discussed here in that it is a far more formal process, and most like the court system.

The benefits are that it offers a formal, binding process without having to navigate the court delays. This in turn can impact on timings and often means arbitration proceedings take place much quicker than court proceedings.

The main disadvantage of family arbitration is the cost involved. Parties need to pay for their solicitors, the arbitrators, the venue, the process and often barristers to represent them at the hearings. As such it mostly remains the preserve of wealthy clients.

Question 21

Court

Answer 21

There remain a few cases where there is no prospect of an out-of- court resolution. As such the court will need to step in to decide a particular dispute. Examples of when this might be the case are where parties:

• refuse to make financial disclosure (more detail of this will be provided later in the module)
• refuse to accept the relationship is over
• are not prepared to take responsibility for the decision making
• have entrenched strategic positions with nothing to gain by
  compromise
• need the court to protect their position (e.g. emergency
  injunctions, child abduction, child abuse, absolute conflict of facts)

Question 22

What legislation covers Divorce

Answer 22

• To end a marriage the parties obtain a divorce – Legislation that governs the law on divorce is the
  Matrimonial Causes Act 1973 (MCA 1973)
• To end a civil partnership the parties obtain a dissolution – Legislation that governs the law on dissolution is the Civil
  Partnership Act 2004 (CPA 2004)
• The procedure for obtaining a divorce and a dissolution is
  set out at FPR 7 and 7APD

Question 23

Potential bars to divorce / dissolution

Answer 23

There are two potential bars to obtaining a divorce/ dissolution:

1) Jurisdiction – do the courts of England and Wales have jurisdiction to hear the case?

2) Parties married or in a civil partnership for less than one year.

Question 24

Potential bars: jurisdiction

Answer 24

The question of whether or not the courts of England and Wales have jurisdiction to hear a dispute is now governed by the Jurisdiction Regulations 2019. This contains the criteria to be satisfied in order for the courts of England and Wales to have jurisdiction to deal with a divorce:
– Criteria are based on habitual residence and domicile
– Work your way down the list of criteria (set out in Chapter
Handout) to see if any apply to give the courts of England & Wales
jurisdiction.
– At least one needs to apply
So what is meant by habitual residence and domicile…?

Question 25

Habitual residence

Answer 25

This has been interpreted by the courts as the jurisdiction in which a person lives on a day- to-day basis or is ordinarily resident.

Short absence from or lack of intention to live permanently in a jurisdiction will not prevent an individual from establishing habitual residence there.

Question 26

Domicile

Answer 26

Domicile is harder to change than habitual residence. There are three forms of domicile:

• Domicile of origin: acquired at birth
  from parents
• Domicile of dependence: reflecting
  change in the parents’ domicile if the
  child is under the age of 16
• Domicile of choice: acquired through
  choice where there is a settled intention to live in a country other than that of their domicile of origin

Question 27

Potential bars: the one year rule

Answer 27

If the parties have been married or in a civil partnership for less than one year, neither party can apply for a divorce or dissolution.

– s.3(1) MCA 1973 (divorce) – s.41 CPA 2004 (dissolution)

Question 28

Studying Family Law in a time of change

Answer 28

At the time of updating the Divorce, Dissolution and Separation Act 2020 (“DDS 2020”) was not yet in force despite receiving Royal Assent in June 2020.

You will be examined on the new law brought in by the DDS 2020 as detailed here and in section 5.3 of your Chapter 1 Handout, even if it is not yet in force whilst you are studying the Family Law module. Similarly, at the time of updating, the procedural rules contained in FPR 7 and 7APD had not been revised to reflect amendments made by the DDS 2020. Furthermore, there are no new court forms yet in existence.

As such you will not be examined on specific references from FPR 7/ 7APD or updated court forms even if updated versions are published by the Ministry of Justice before or whilst you are studying the Family law module.

You are however, expected to know the procedure as outlined in section 5.4 of your Chapter 1 Handout and set out in the DDS 2020.

Question 29

Divorce and Dissolution: the road to reform

Answer 29

The law in relation to divorce and dissolution has recently undergone a radical change following the DDS 2020.

Before considering provisions of the DDS 2020 in detail, we will briefly look at the old system and the background to reform (neither of which are examinable on this module):

*
To obtain a divorce or dissolution, the applicant needs to satisfy the ground of irretrievable breakdown.

Under the old system the applicant also needed to satisfy one of the facts set out in either s.1(2) MCA 1973 or s.44(5) CPA 2004.

The result of these regimes was that the applicant had to rely on a fault-based fact OR wait at least 2 years from the date of separation to start proceedings (or 5 years if no consent given).

It was also possible for a respondent to defend divorce/dissolution proceedings – although this was extremely rare.

Question 30

Divorce and Dissolution: the road to reform

Answer 30

The old system was widely criticised:

– it was usually possible to get divorced / dissolve a civil partnership
more quickly if the applicant relied on a fault-based fact (most
commonly unreasonable behaviour)

– this often heightened conflict between the parties and encouraged
a cycle of blame

– it undermined parents’ ability to work together for the future well-
being of their children

Many family lawyers and practitioners within the family justice system had long called for the introduction of no-fault divorce

Final catalyst for change: Owens v Owens [2018]

Divorce, Dissolution and Separation Act 2020 (“DDS 2020”)
received royal assent in June 2020

Question 31

Key points of the DDS 2020

Answer 31

Removal of the five facts
* The ground remains the same (irretrievable breakdown)
* No need to provide a reason – it is enough for the applicant to
state that the marriage/ civil partnership has broken down irretrievably

Option of a joint application
* Parties can apply jointly if they choose
* Enables a more conciliatory approach
Removal of the option to defend Update terminology

• Removal of old fashioned language such as ‘petitioner’
  Minimum overall timeframe of 26 weeks – ‘cooling off’ period
• At least 20 weeks between issue and conditional order.
• At least 6 weeks between conditional and final order.

Question 32

Dissolution: The new law under DDS 2020/ CPA 2004

Answer 32

The DDS 2020 amends the CPA 2004 as follows:
*
The position in relation to the dissolution of civil partnerships mirrors the above. Sections 3 and 4 of the DDS 2020 make certain amendments to s.44 and insert a new s.37A CPA 2004 as follows:
– Eitheroneorbothpartiestothecivilpartnershipmayapplytothecourtfor a ‘dissolution order’ which dissolves the civil partnership on the ground that the civil partnership has broken down irretrievably (s.44(1) CPA 2004);
– Anapplicationmustbeaccompaniedbyastatementofirretrievable breakdown (s.44(1A) CPA 2004);
– The court dealing with the application must take this statement as conclusive evidence that the civil partnership has broken down irretrievably (s.44(4) CPA 2004);

The process of dissolution remains a two-stage process and a new s.37A has been inserted into the CPA 2004 to achieve the following amendments (as substituted by s.4(3) DDS 2020) –
– inthefirstinstancethecourtwillmakea‘conditionalorder’(s.37A(1)(a) CPA 2004);
– thecourtmaynotmakeaconditionalorderunlesstheapplicant(s)have confirmed to the court that they wish the application to continue (s.37A(2) CPA 2004);
– apartymaynotgivesuchconfirmationbeforetheendoftheperiodof20 weeks from the start of proceedings (this is referred to as the ‘second prescribed period’) (s.37A(2) CPA 2004);
– theconditionalordermaynotbemadeintoafinaldissolutionorderbefore the end of six weeks from the making of the conditional order (this is referred to as the ‘first prescribed period’) (s.37A(1)(b) CPA 2004);
– itisopentotheLordChancellortoamendthesetwoprescribedperiods but only to the extent that the whole process does not exceed 26 weeks (s.37A(4) CPA 2004);

Question 33

Divorce and Dissolution: Procedure

Answer 33

The procedure for obtaining a divorce and a dissolution is set out at FPR 7 and 7APD
* As has already been noted, at the time of updating these rules have not been revised to reflect the changes introduced by DDS 2020 and no new court forms have yet been produced.
* You will not be examined on specific references from FPR 7/7APD but you must know the procedure set out in section 5.4 of Chapter 1.
* Review this section carefully, making a note of the documents involved.
* This will be covered in SGS in more detail.