Family Law and Practice
Preliminary Matters
Divorce
What does the module cover?
• Divorce law and
procedure
• Domestic violence orders
• Private child orders
• Cohabitation
• Financial relief
What topics?
Adam has split up with his girlfriend Bethany. He wants advice about the flat
they share and about making sure he can see his daughter Chloe.
Dawn is married to Edward. Edward has been physically abusive, and Dawn
has decided to end the marriage. She would like advice on how to end the
marriage, how to remove Edward from the family home and whether she
will get any financial relief when the marriage is ended.
Books
Family Law and Practice CLP 2024
What skills does a family lawyer need?
• How is the client feeling and
what do they need?
• What is your role?
• Retainer letter.
No legal aid in family law except…
Public law
Protective injunctions : non-molestation order, occupation order, forced marriage
protection order
Child applicant
Prevent unlawful removal of child
Domestic violence gateway
Domestic violence gateway and legal aid
“any incident or pattern of incidents of controlling,
coercive or threatening behaviour, violence or abuse.”
Abuse does not just mean physical abuse.
Evidence of domestic violence / risk of domestic
violence
Legal Aid
• Means Test
• Statutory Charge so not free
Impact of lack of legal aid for family law
• Delays
• More acrimonious
• Lack of knowledge of
rights
• Bullying/manipulation
• Unfair bargaining position
Impact of Lack of Legal Aid
Increase in unrepresented litigants
https://resolution.org.uk/resolutions-goodpractice-guides/good-practice-guide-toworking-with-litigants-in-person/
Family Law and ADR
• Mediation: Children and Families Act 2014 s. 10
Mediation Information and Assessment Meeting (MIAM)
• Manual 2.5.2
Family Law and ADR
• Collaborative Law
• Manual 2.5.4
Family Law and ADR
• Arbitration
• Family Manual 2.5.6
Divorce
• Old Law Matrimonial Causes Act
1973
• New Law Divorce Dissolution and
Separation Act 2020
• Owens v Owens [2018] UKSC 41
Divorce
Not available during the first year of marriage
Nullity
Judicial separation
Wait
Divorce is not available in the first year
Andrea has been married for ten months and she is very
unhappy with her husband Ben's drinking.
Charles has been married for four months. He only
married his wife because he was threatened by her father.
Divorce under the MCA 1973
Ground for divorce was irretrievable breakdown.
Show the marriage has broken down irretrievably
by proving one of the five facts in MCA 1973 s.
1(2)
The Five facts :
Adultery
Unreasonable behaviour
Desertion
Living apart:
2 years with consent
5years without consent
Divorce Under Divorce Dissolution and
Separation Act 2020
Ground for divorce is irretrievable breakdown
Applicant files a statement confirming this
The Court must accept this statement
No need to prove the previous facts
Divorce Procedure
• Mainly online
• Sole or joint application
• Joint not appropriate if domestic abuse
Divorce Procedure
Applicant creates a
case online or files form
D8-
Respondent returns
acknowledgement of
service to the court
Applicant applies for
conditional order within
20 weeks.
Conditional order
Applicant applies for
final order (6 weeks)
Respondent applies for
final order (4.5 months)
Final order- marriage
dissolved
Divorce Procedure
• Sole procedure: Manual Figure 3.1
• Joint procedure: Manual Figure 3.2
Application
•
•
•
•
•
•
Contact details (unless need to be kept confidential)
A statement that the marriage has irretrievably broken down. It is not necessary to
produce evidence of irretrievable breakdown. The applicant’s statement is conclusive.
The date of the marriage and the parties’ names as they appear on the marriage
certificate. If the marriage took place outside the UK, the place and country must
also be added.
A statement as to whether the applicant wishes to apply for a financial order.
Original marriage certificate
Fee £593 or exemption
Service
Issued application
Acknowledgement of service form
Notice of proceedings
Within 28 days
Various methods see 3.10.7 of manual
Acknowledgement of service
PAPER OR
ONLINE
WITHIN 14
DAYS
MANUAL
3.10.8
Application for Conditional Order (previously
Decree Nisi)
No earlier than 20 weeks after issue
Slower process under new law to prevent “quickie divorce”
Court sends certificate of entitlement to conditional order with date
No need to attend
Does not dissolve the marriage
Final Order (previously decree absolute)
Applicant can apply 6 weeks after conditional order
Court will make provided financial applications have been dealt with
If application more than 12 months need written explanation
Respondent can apply 4.5 months after conditional order
Joint Applications
Applicant 1 and Applicant 2.
Agree in advance as online service passes from one to another to review and agree
Can have one solicitor (surprisingly) but rare
If a solicitor must use paper process
Can start off joint and then become sole
Defending a divorce
• Cannot defend irretrievable breakdown
• Can only defend:
validity of the marriage
subsistence of marriage
Jurisdiction
Procedural issue
• No orders for costs
Divorce and Costs
• Need separate application
• Manual 3.12
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