Family Law Revision Notes PDF

Consider at the first interview: Court will not make a conditional order unless the applicant(s) 1. Client details confirm that they wish the application to continue. – s.1(5)(a)-...

Consider at the first interview: Court will not make a conditional order unless the applicant(s) 1. Client details confirm that they wish the application to continue. – s.1(5)(a)- 2. Client’s story and objectives (b) MCA 1973 3. Screening for issues – eg. domestic abuse The applicant(s) must give confirmation before the end of a 20- 4. Signpost client to ADR week period from the start of proceedings. – s.1(5) MCA 1973 5. Funding options FPR 2.9 Count clear days: 20 weeks and add 1 day DIVORCE AND DISSOLUTION Stage 2 – Final order: Within 6 weeks from the conditional order, the parties/sole DIVORCE PROCEDURE: applicant can apply for the court to turn it into a final divorce order. – s.1(4)(b) MCA 1973 Exam structure – divorce: 1. Length of marriage The court must wait for 6 weeks from the conditional order to 2. Jurisdiction make the final order. 3. Grounds for divorce The Lord Chancellor may amend these time frames but the 4. Procedure for divorce whole process cannot exceed 26 weeks. – s.1(6)-(7) MCA 1973 5. Conclude FPR 2.9 Count clear days: 6 weeks and add 1 day Length of marriage: Application is dealt with on paper and the final order is granted and copies sent to both parties. s.3(1) MCA 1973 The parties must have been married for at least 1 year to issue proceedings as any other applications will be barred. Once the final order has been granted that the marriage is over and parties are free to re-marry. Set out the length of marriage and see if it satisfies the criteria. DISSOLUTION PROCEDURE FOR CIVIL PARTNERSHIPS: Jurisdiction: Exam structure – civil partnership: s.5(2) Domicile and Matrimonial Proceedings Act 1973 The most 1. Length of civil partnership suitable jurisdiction for the proceedings should be England and Wales. 2. Jurisdiction 3. Grounds for divorce The English court will have jurisdiction if: 4. Procedure for divorce – Both parties are habitually resident or domiciled in England/ 5. Conclude Wales – Either party is domiciled in England/Wales Length of civil partnership: – The respondent is habitually resident in England/Wales – The applicant has been habitually resident in England/Wales for s.41 CPA 2004 The parties must have been civil partners for at least 1 1 year immediately before the application. year to issue proceedings as any other applications will be barred. If so, they can commence proceedings in the UK. Set out the length of civil partnership and see if it satisfies the criteria. Grounds for divorce: Jurisdiction: s.1(1) Matrimonial Causes Act 1973 One/both parties to the marriage s.5(2) Domicile and Matrimonial Proceedings Act 1973 The most can apply to the court for a divorce order on the ground that the suitable jurisdiction for the proceedings should be England and Wales. marriage has broken down irretrievably. – there is only this one ground and no need for any of the previously used 5 facts to prove this ground. The English court will have jurisdiction if: – Both parties are habitually resident or domiciled in England/ s.1(2) MCA 1973 An application must be accompanied by a statement Wales of irretrievable breakdown. – Either party is domiciled in England/Wales – The respondent is habitually resident in England/Wales s.1(3) MCA 1973 The court dealing with the application must take this – The applicant has been habitually resident in England/Wales for statement as conclusive evidence that the marriage has broken down 1 year immediately before the application. irretrievably. If so, they can commence proceedings in the UK. Procedure for divorce: Grounds for dissolution: *Only discuss if specifically asked* s.3-4 Divorce, Dissolution and Separation Act 2020 s.44 of CPA 2004 is Before commencing proceedings: amended and a new s.37A CPA 2004 is inserted. If sole Applicant: notify Respondent before sending off the application to maintain a cooperative relationship. s.44(1) Civil Partnership Act 2004 One/both civil partners may apply to for a dissolution order which will dissolve the civil partnership on the Applicant must send the court: ground that it has broken down irretrievably. – The completed court application form – Including statement of irretrievable breakdown s.44(1A) CPA 2004 An application must be accompanied by a statement – Court fee of irretrievable breakdown. s.44(4) CPA 2004 The court dealing with the application must take this Financial Dispute Resolution Appointment: statement as conclusive evidence that the civil partnership has broken Rule 9.15(7)(b) and 9.14(5)(d) Family Procedure Rules 2010 down irretrievably. Court may treat a first appointment as a Financial Dispute Resolution Appointment (FDRA) if the parties submitting the Procedure for dissolution: application docs state in the notice that they are in a position to make their first appointment an FDRA. s.4(3) DDSA 2020 Procedure is set out. FDRA = Dispute resolution meeting where parties try to reach Before commencing proceedings: an agreement. – FPR 9.17(1) and (6) If sole Applicant: notify Respondent before sending off the If sole Applicant: once issued, serve on the other party: application to maintain a cooperative relationship. The documents that were sent to court Applicant must send the court: Blank acknowledgement of service for them to fill in – The completed court application form Notice of proceedings received from Court (this will explain the – Including statement of irretrievable breakdown procedure and next steps) – Court fee Stage 1 – Conditional order: Financial Dispute Resolution Appointment: Court in the first instance will make a conditional order and FPR 9.15(7)(b) 9.14(5)(d) Court may treat first appointments as send a copy to each party. – s.1(4)(a) MCA 1973 a Financial Dispute Resolution Appointment (FDRA) if the parties submitting the application docs state in the notice that they are in a position to make their first appointment an FDRA. Family law – Revision notes | Page 1 of 20  FDRA = Dispute resolution meeting where parties try to reach Pros Cons an agreement. – FPR 9.17(1) and (6) * Most similar to the court * Most expensive option If sole Applicant: once issued, serve on the other party: process and offers clients an alternative to relying on a court The documents that were sent to court system that is at full capacity Blank acknowledgement of service for them to fill in and beset by delays Notice of proceedings received from Court (this will explain the * Bespoke, straightforward procedure and next steps) process * Family dispute can be resolved Stage 1 – Conditional order: quickly and privately * Parties select their own tribunal Court in the first instance will make a conditional order and * Final arbitral award is binding send a copy to each party. – s.37A(1)(a) CPA 2004 on both parties with more limited scope for appeal Court will not make a conditional order unless the applicant(s) confirm that they wish the application to continue. – s.37A(2) CPA 2004 Mediation: The applicant(s) must give confirmation before the end of a 20- A process in which couples cab decide for themselves what to do about week period from the start of proceedings (the second their children and finances with the help of an impartial mediator. prescribed period). – s.37A(2) CPA 2004 FPR 2.9 Count clear days: 20 weeks and add 1 day Matters most suited to this type of dispute resolution? * Cases involving children as mediation is child-focused and Stage 2 – Final order: enabled children of a suitable age to meet with the mediator and express their feelings Within 6 weeks from the conditional order, the parties/sole * Financial cases since any agreement becomes legally binding applicant can apply for the court to turn it into a final order (the once it has been made into a Consent Order first prescribed period). – s.37A(1)(b) CPA 2004 The court must wait for 6 weeks from the conditional order to Not appropriate for: domestic abuse cases/harm to a child make the final order. Pros Cons The Lord Chancellor may amend the two prescribed periods but the whole process cannot exceed 26 weeks. – s.37A(4) CPA * Process is confidential so * Voluntary process so nobody can 2004 parties can explore their be forced to mediate FPR 2.9 Count clear days: 6 weeks and add 1 day options without prejudice * Mediation only works if both * Mediator is impartial and will parties are fully engaging with it. Application is dealt with on paper and the final order is granted not take sides and copies of this will be sent to both parties. * Clients are in charge of the outcome Once the final order has been granted that the civil partnership * Costs less than half the price is over and parties are free to re-marry. and takes half the time of going to court IMPACT OF THE DDSA 2020: * Ensures better results for families The DDSA 2020 changed the law on divorce: 1. Removed the possibility of one party contesting the application. Solicitor negotiations: 2. Made the terminology simpler and accessible for laypersons – Solicitors from both sides negotiate → offers clients a process where Decree nisi is not called a conditional order and decree absolute they do not have to be in the same room as their ex-partner. is now a final order. Matters most suited to this type of dispute resolution? Most cases 3. It removed the requirement to establish one of five facts and allows for a joint application: Pros Cons – Application must be accompanied by a statement by the applicant that the marriage or CP has broken down * This is the default option * Costs dependent on both length especially where one party and breadth of negotiations irretrievably refuses to engage in other * Tends to be more expensive than – Statement will be taken as conclusive evidence alternative processes or where mediation since increased – No need for any facts to prove this ground a mediation has broken down involvement of solicitors – Removes issue of fault from divorce/dissolution process * Clients do not have to be in the same room 4. Introduced new timeframes: * Between parties face-to-face – Old rules: applicant could apply for decree nisi/ or solicitor’s correspondence conditional order once the R has acknowledged service. – New rules: court will not make a conditional order until at least 20 weeks after the start of the proceedings. Collaborative Law: – Minimum period between the conditional order being Couples can focus on child-centered issues in a supported environment. granted and the applicant(s) being able to apply for a Process involves both parties and respective solicitors signing up at the final order (this will be 6 weeks and 1 day) start of the process to an agreement. – Mandatory cooling off period of 20 weeks between the commencement of proceedings and the applicant(s) Matters most suited to this type of dispute resolution? Most cases being able to apply for a conditional order – Minimum time from applying for the divorce to Not appropriate for: domestic abuse cases/cases with lack of trust and obtaining the final order is 26 weeks. communication between the parties. TYPES OF NON-COURT DISPUTE RESOLUTION: Pros Cons Arbitration: * It is agreed that if the process * More expensive process given breaks down, both parties are the involvement of both parties’ Parties appoint an arbitrator to decide the case and provide them with required to instruct new solicitors at all of the 4 way a binding decision. solicitors – strong incentive for meetings everyone to strive towards Matters most suited to this type of dispute resolution? agreement and resolution Suits complicated financial cases in need of swift resolution. * Abiding threats are removed * Collaborative process – similar benefits to mediation Not appropriate for: simple cases * Confidentiality * Withdrawal by solicitor if party is withholding information – forces transparency * Concluded quicker than conventional discussions or court Family law – Revision notes | Page 2 of 20  CHILDREN – PRIVATE LAW – S.8 ORDERS Women in relationship with mother: Parental rights and responsibilities: s.2(1A) A woman who is married to a woman/in CP when that woman is artificially inseminated will automatically have PR. Decision- In relation to For significant decisions, s.42(1) HFEA 2008 Such a woman is deemed to be a parent with PR. making day-to-day the consent of both s.43 HFEA 2008 Woman obtains PR if she marries/enter into CP mother. regarding the decisions, each parties with parental child’s daily parent can responsibility will be Non-parents: routine – eg. exercise required – eg. name and their diet and parental name change, child’s s.25 Adoption and Children Act 2002 Adoption orders give adopter PR. what time they responsibility schooling, religion, s.5(6) CA 1989 The child’s guardian acquires PR (appointment effective go to bed. independently. medical treatment. on mother’s and father’s death if father has PR). s.12(2) CA 1989 If someone obtains “lives with CAO”: court must also make a PR order in favour of that person if they have no PR. Exam structure – s.8 orders: s.12(2A) If person who is not parent/guardian obtains “spends time with 1. How to commence proceedings CAO”: court may make a PR order in favour of that person. 2. Who has parental responsibility 3. Types of orders that party wants to apply for and whether Step-parent/civil partner may obtain PR: they meet the requirements Enter into PR agreement with all parents with PR. 4. Welfare checklist s.4A CA 1989 If not possible, stepparent/CP can apply for PR order. 5. Conclude Rules on PR: Consider all of these steps in a problem question regarding an issue on parental rights. When does PR end? Parents – automatic PR: PR ends when child is 18/adopted/parent dies. COMMENCING PROCEEDINGS: Unmarried father/stepfather/other woman: court can end PR any time. Not parent but acquired PR after CAO: PR will last as long as the CAO. The applicant should first negotiate with the other parent by sending out a solicitor’s letter to this effect. s.10(4) CA 1989 Who can apply for s.8 order? Parents FPR 3.6 12 BPD 5.3 If this is unsuccessful, then the parties must attend Stepparents with PR a MIAM before making an application. Anyone with “lives with CAO” in force. MIAM exemption: s.10(5) CA 1989 Who can apply for a CAO: * Evidence of domestic abuse Any party to a marriage/CP in relation to whom the child is a * Child protection concerns child of the family. * Matter is urgent as there is a risk to life/limb/liberty/physical Anyone with whom the child has lived for 3 years (not beginning safety, risk of harm to the child/child abduction. more than 5 years before and not ceasing more than 3 months before the application) If attended MIAM without success of falls within an exemption, then the applicant can go ahead with an application. Anyone with the consent of: – Everyone with “lives with CAO” in force Churchill v Merthyr (2023) The court has the discretion to insist on the – Local Authority (LA) if child is in its care parties resolving their dispute wholly via mediation. OR – In any other case, those who have PR for the child PARENTAL RESPONSIBILITY (PR): s.10(1) CA 1989 Anyone else applying for a s.8 order must apply for court State who the applicant is and see whether they have/can obtain PR. permission first. s.10(8) CA 1989 A child can apply for a s.8 order on their own behalf – Multiple parties may have parental responsibility: court grants permission if the child has sufficient understanding to make 1. The mother the application. 2. The father 3. A woman in relationship with the mother THE TYPES OF ORDERS THAT COULD BE MADE: 4. Non-parents in certain circumstances Duration of s.8 orders: Mother: s.9(6) CA 1989 Any s.8 order will only take effect up to the 16th birthday of the child unless there are exceptional circumstances. s.2(1) and s.2(2)(a) CA 1989 Mothers have automatic parental responsibility without the need to make an application. Child arrangements orders (CAO): Father: “Lives with” CAO: s.2(1) CA 1989 Fathers only have automatic parental responsibility if If parties cannot agree which parent the child should live with post- they were married to the child’s mother when the child was born. separation one of them can apply for “lives with” order. Court may grant a “lives with” order in favour of both parents. – more If not married to the mother, father can acquire PR by: likely if the child has historically spent substantial time with both. 1. Being named as the father on the child’s birth certificate – Division of time need not be equal. s.4(1)(a) CA 1989 2. Entering into PR agreement with mother – s.4(1)(b) Relocation with children: 3. Applying for a court order – s.4(1)(c) 4. Marrying the mother – s.2(3) s.13(1)(b) CA 1989 s.1(1) Child Abduction Act 1984 No one can remove 5. Being appointed the child’s guardian (but appointment will take a child from the UK without written consent from everyone with effect on mother’s death only) – s.5(6) PR/leave of the court. 6. Obtaining a child arrangement order (CAO): Exception: s.13(2) CA 1989 s.12(1) If father obtains a “lives with CAO”: court must also make Person with PR or “Lives with CAO” may remove the child for less than 1 a PR order if father has no PR. month without the consent of the other parties with PR. – short holidays. s.12(1A) If father obtains a “spends time with CAO”: court may make an order granting the father PR. Parent wanting to remove child from the jurisdiction should apply to the court for permission. Consider factors: Re H (Minors) (LA: Parental Rights) (No3) * Degree of commitment towards the child Consider factors: * Degree of attachment between father and child * Impact of relocation on the parent left behind if granted. * Father’s reasons for applying – child-focused? * Impact on applicant if the application is refused. * Guiding principles will apply – mainly the s.1(1) welfare principle. * Motives of both parents – are motives child-focused? * Proposals of the applicant – plans for a home, child’s schooling, job, how will the other parent contact the child. Is this a going home (to country of origin) or moving away case? Less likely to Family law – Revision notes | Page 3 of 20  allow if parent and children have no connection to the country they are moving to. THE CHILDREN ACT 1989’S GUIDING PRINCIPLES: The court will apply any relevant guiding principles in determining the Change of surname: application. s.13(1)(a) CA 1989 If there is a ‘lives with’ CAO, no person may change s.3(1) Children Act 1989 Court should take into account all the rights, the child’s surname without written consent of everyone with PR/leave duties, powers, responsibilities and authority a parent of a child has in of the court. relation to the child/their property. s.10(5) CA 1989 Any party to a marriage in relation to whom the child is Welfare Principle: s.1(1) a child of the family is entitled to apply for CAO. The child’s welfare will be the court’s paramount consideration. Taking the child on holiday: No Delay Principle: s.1(2) s.13(1)(b) CA 1989 Parents are not allowed to take a child under 16 out The court take into account that any delay in determining the question of jurisdiction without the consent of other parent with PR/the court. is likely to prejudice the welfare of the child. s.13(2) CA 1984 Exception: The parent with a “lives with” CAO in place, No Order Principle: s.1(5) may take the child out of the jurisdiction for a period of less than 1 month without the other parent’s consent/leave of the court. No order to be made unless doing so would be better for the child than making no order at all. – court will allow/uphold agreements between “Spends time with” CAO: the parents unless that would not be beneficial to the child’s welfare. CAO providing for contact can cover regular contact and contact during Presumption of Parental Involvement: s.1(2A) school holidays. s.1(4)(a) s.11 CFA 2014 Court will presume that the involvement of both CAOs can provide for direct and/or indirect contact. parents in the child’s life will further the child’s welfare in circumstances. Order can be prescriptive about precisely when contact should take place or it can be more general. Presumption can be rebutted if: There is evidence that the involvement of both parents would be Domestic abuse: detrimental to the child’s welfare – decisions that there should be no involvement are rare. A child benefits from having contact with both parents. 12 JPD 7 (Child Arrangements and Contact Orders: Domestic Abuse and 12 JPD If there are domestic abuse allegations: Harm) Cases of domestic abuse: Court will have particular regard to any * Is the domestic abuse harmful to the child? allegations/admissions of domestic abuse to the child/parent and * Has the child been subject to domestic abuse? carefully consider whether the presumption should be rebutted. * Does the child live in a home in which domestic abuse has been perpetrated – child need not be conscious of the behaviour. THE WELFARE CHECKLIST: * When deciding on child arrangement – court must ensure that a contract order will not expose the child to an unmanageable risk Court will consider each of the below factors when making a decision. of harm and will be in their best interests. You should spend most of your time in this question applying the facts * How does the court deal with non-compliance and other to this checklist. problems regarding contact? s.1(3)(a) CA 1989 The ascertainable wishes and feelings of the child s.11A Court may make an order that a parent who is party to CAO (considered in the light of the child’s age and understanding). – usually proceedings must take part in activities helping to establish, maintain or compiled in a s.7 report by the CAFSASS Family Court Adviser. improve involvement in the child’s life for that parent/other parent. s.11H Court may ask a CAFCASS officer to report/monitor compliance For older/more mature children: more weight given to their wishes/ with CAO. feelings. Maturity is determined on child’s intelligence/understanding, s.11I When the court makes/varies a CAO, it must attach a notice not age. warning the parties of the consequences for non-compliance. Gillick v West Norfolk and Wisbech Child must be Gillick competent – Specific issue order (SIO): must have sufficient understanding and intelligence to make a sound decision on the issue. SIO = An order determining single issue disputes between the parties relating to PR. – eg. where the child should go to school. Area Health Authority Court will consider: * The significance of the decision s.9(5) CA 1989 If the outcome can be achieved by a CAO, the court * If the child’s wishes/feelings are influenced by one of the parents should not make a SIO/Prohibited steps order. * Rarely separates siblings feelings Change of surname: The child’s physical, emotional and educational needs: s.1(3)(b) If there is no “lives with” CAO in place: obtain consent of everyone with Court will consider the disruption caused to the child’s education by PR to change the child’s surname. If not possible, apply for a specific making/refusing the order. issue order to the court. Dawson v Wearmouth Court can only order a change of surname if there Physical needs: *Can the parent meet the child’s physical needs?* * Needs for food/drinks is evidence that this would be an improvement in terms of the welfare * Need for safety and to remain free of injury of the child. * Need for shelter Re W Re A Re B (Change of Name) If the reason for seeking a * Need for adequate clothing surname change is that the child’s surname is not the same as the parent, this will not carry much weight. Emotional needs: * It is in the child’s best interests to spend quality and bonding Prohibited steps order (PSO): time with both parents. * The child’s emotional needs include the maintenance of a PSO = An order preventing a party from taking specific steps in relation positive relationship. to a child (used for single issue disputes). – eg. Preventing a child’s surname from being changed if one party with PR is informally allowing Educational needs: *Will the order disrupt the child’s education?* the child to be known by a new surname. Prohibiting a party from * Should not affect pick up times from school. removing a child from the UK. * Should not involve a change of school. * Any holidays should not be taken in term-time. Example: Gabriel is the father of Amanda and wishes to take her on vacation without Amanda’s mother. Gabriel has been caring for the children on the weekends for three years and their physical needs have always been met. Family law – Revision notes | Page 4 of 20  It is in Amanda’s best interest emotionally to spent time with her father and to have a restful holiday with novel experiences and undisrupted time to bond with her father. A holiday of 1 week should not be disruptive of Amanda’s education if not taken during term- time. The likely effect on the child of a change in circumstances: s.1(3)(c) State the current circumstances (status quo) and consider the impact of a change in circumstances on the child’s welfare. CAO contact: * Consider if the child has previously had regular contact with the parent making the application. * How long has the current pattern of contact been established for? Holiday: * Consider if parent has ever taken the child on holiday before. * Is the parent to take the child to a new country/continent they have not been before? Example: Gabriel has taken Amanda on two holidays before, so taking her on holiday this year will not amount to a change in circumstances. The child’s age, sex, background and relevant characteristics: s.1(3)(d) Age: * Babies are too young and should not be separated from mothers overnight, especially if breastfeeding. * Children over can likely be separated from their mothers. Sex: Child should be able to spend time with role model of same sex. Any harm the child has suffered/at risk of suffering: s.1(3)(e) Physical, psychological and emotional harm the child has suffered or is at risk of suffering. Preventing the child from seeing the other parent with no good reason is emotionally damaging to the child. Capability of parents to meet child’s needs: s.1(3)(f) Court will consider: * Physical/mental illnesses that either parent has and consider the extent to which this may affect their ability to care for the child * Harm from domestic abuse – direct/indirect eg. witnessing. * Systems of care are in place – eg. live close to school, pick ups The range of powers available to the court: s.1(3)(g) a) Court has the power to make an order that a person should not be permitted to make further applications. – s.91(14) CA 1989 b) Make a different order c) Make a conditional orders requiring party to comply with Activity Direction pursuant to s.11 CA. d) Order CAFCASS s.7 report to investigate child’s wishes/feelings. Family law – Revision notes | Page 5 of 20  CHILDREN – PRIVATE LAW – S.8 ORDER CHILD ABDUCTION: APPLICATION AND CHILD ABDUCTION Within the UK: S.8 ORDER APPLICATION PROCEDURE: If parent/carer wants the child to live in different part of UK, they will need consent from the other parties with PR/court permission. STEP 1. – Attend MIAM: If a parent has reason to believe the other will act without consent/ FPR 3.6 12 BPD 5.3 The parties must attend a MIAM. permission, they should apply for a PSO: 12 BPD 5.3 and 5.9 Parties can attend MIAM together/separately. Apply without notice if risk is imminent If not already a CAO in force, apply for one MIAM exemption – the parties can refuse to attend: FPR 3.8 FPR 5.6 s.8 order made in England and Wales is enforceable in other * Evidence of domestic abuse countries within the UK – s.25(1) FLA 1986 * Child protection concerns Does not amount to a criminal offence. * Matter is urgent as there is a risk to life/limb/liberty/physical safety, risk of harm to the child/child abduction. Taking abroad from the UK: The application must: FPR 3.7 s.13(1)(b) CA 1989 s.1(1) Child Abduction Act 1984 No one can remove * Be signed by the applicant/solicitor/mediator to confirm that a a child from the UK without written consent from everyone with MIAM exemption applies PR/leave of the court. OR * Be signed by the mediator to confirm that MIAM was attended. Exception: s.13(2) CA 1989 Person with PR or “Lives with CAO” may remove the child for less than 1 STEP 2. – Send application on Form C100 (day 1): month without the consent of the other parties with PR. – short holidays. * Court issues application * Court will serve on the parties: 12 BPD 8.8 More than 1 month is a criminal offence. × Issued application (C100 and C1A if applicable) × Blank acknowledgement Form C7 Steps to prevent abduction: × Blank Form C1A × Serves on R only: Notice of Hearing Prohibited steps order: s.8 CA 1989 * If threat is imminent apply without notice so R will not be * Court sends C100/C1A to CAFCASS – 12 BPD 8.9 notified. * Apply together with application to surrender child’s passport R must file the acknowledgement (and C1A if applicable) within 14 days and order that passport agency does not issue new passport for from receipt. – 12 BPD 8.9 child without consent of both parties. STEP 3. – Allocation/gatekeeping (day 2): Tipsaff orders: 12 DPD 7 12 BPD 9 Checking any issues and paperwork. * Power to make orders to locate and retrieve children who have been abducted STEP 4. – Safeguarding checks (within 17 working days from receipt osf * Applications usually obtained without notice – FPR 12.47(e) application): * Passport order * If application is for CAO/FCA, CAFCASS should carry out the * Location order safeguarding checks – 12 BPD 13.1 * Collection order * Lists types of checks to be carried out – 12 BPD 13.3 * CAFCASS to set out outcome of checks in a safeguarding letter to Port alert system: 12 FPD 4.1-4.8 the court at least 3 working days before FHDRA – 12 BPD 13.7 * Involves police informing ports that there is a threat that a child is about to be removed unlawfully from the country. STEP 5. – FHDRA (Week 5 to week 6): * Threat must be real and imminent. – 12 FPR 4.2 * Takes place within 4-6 weeks of issue of application. – 12 BPD 14.1 * All parties to attend except for children – 12 BPD 14 * Purpose of FHDRA is to give parties a chance to identify their disagreement and try to resolve those issues. – 12 BPD 14.11 * Court decides whether or not to order s.7 report * Not without prejudice, so FHDRA judge may be the same person as the judge for the hearing. FHDRA Directions: × In CAO applications: s.7 report – 12 BPD 14.3 × Expert evidence – s.13(6) CFA 2014 × Parties’ witness statements to be served. × Interim arrangements concerning child × Listing further hearings – eg. fact-finding hearing. × Judge will fix timetable for proceedings with view to determine application without delay – s.11(1)(a) CA 1989 S.7 Report: FCA will interview parties separately when preparing their report, the court will direct FCA as to issues their report should cover, the court will usually follow FCA’s recommendations. STEP 6. – Fact finding hearing: 12 BPD 20.1 Only done if the court thinks it necessary to determine if domestic abuse allegations are true before the final hearing. STEP 7. – Dispute Resolution Appointment (DRA): * Parties will try to resolve some/all issues. – 12 BPD 19.1-19.3 * If they cannot resolve matters, court makes further directions. * Parties should comply with all FHDRA directions by the time of the DRA. STEP 8. – Final hearing Family law – Revision notes | Page 6 of 20  CHILDREN – PUBLIC LAW LA cannot: * Cause child to be brought by a different religion * Agree/disagree an adoption order PROVISIONS RELATING TO SERVICES: * Appoint a guardian for the child s.17(1) CA 1989 Local Authority (LA) has a duty to safeguard/promote The child will not be automatically removed from parents. LA has a duty the welfare of children in need within their area and to promote their to keep children with the family if possible and removal is a last resort. upbringings. Effect of a supervision order: A child is in need if: s.17(1) Usually made for 1 year only (may be extended up to 3 years in total). (a) Without LA services, they are unlikely to achieve/maintain/have the chance of achieving/maintaining a reasonable standard of s.35 LA will not have PR and LA has a duty to advise/assist/befriend the health/ development. supervised child and take steps to give effect to the terms that the court (b) Their health/development is likely to be significantly impaired, will have stipulated in the supervision order. LA may later issue care or further impaired, without the provision for him of such order proceedings if LA believes they must intervene and remove the services child. OR (c) They are disabled Requirements for the order: 1. Meet the Threshold Criteria Duty to investigate: AND 2. An order must be necessary Para 1(1) Sched 2 LA must: * Take reasonable steps to identify the extent to which there are Threshold Criteria: s.31(2) children in need in its area 1. Child must be suffering/likely to suffer significant harm – s.31(2)(a) AND * Decide if a particular child is in need. s.31(10) In assessing whether harm is significant, the court will compare the child’s health/development with what is LA must respond to a referral within 1 working day and to make a reasonably expected of a similar child. decision about the type of response that is required. 2. Harm must be attributable to parental care falling below a reasonable standard/child being beyond parental control – Steps to take: s.31(2)(b) 1. After acceptance of referral by LA, social worker should conduct a s.17 CA multi-agency assessment. Timeframe for completing Obj test: Would a reasonable parent give such care to meet the assessment is max 45 working days. needs of that particular child? 2. Social worker should not wait until the assessment concludes before commissioning services to support the child/their family. You will look at the definition of harm and development in the next 3. If LA decides to provide services, social worker should prepare a step. multi-agency Child in Need Plan (setting out which agencies will provide which service to the child and family). Is the order necessary? 4. If suspicion that the child is suffering or likely to suffer harm, LA * Court will use the threshold test by looking back to the time should hold a strategy discussion to enable it to decide whether immediately before removal. to initiate enquiries. – s.47 CA 1989 * Court looks to the present and future – how should the child be 5. LA concludes that child is suffering/likely to suffer significant protected from the risk of harm in the future? harm. Steps to take: 1. Before it can make an order, court must consider the care plan 6. LA will consider all other options before applying for an order: drafted by LA at the outset of proceedings and outlines of plans * Family Group Case Conference (FCG): collaborative it has for child should the order be made. – s.31A approach with agencies and Parents – Aim is to establish 2. If court is considering an application for care or supervision a plan for protecting child or deciding on services that order, it must consider the other orders available to it including should be provided to child and family s.8 CA. * If a child protection plan is established: designate a 3. Court will assess the degree of risk and apply the least draconian social worker as the lead professional. order to the risk which will adequately protect the child. 7. Court may direct LA to investigate child’s circumstances. – s.37 Interim orders: 8. If LA decides to make an application for a care or supervision order it should make the application to the court that gave the s.38 Court may make interim orders which may be used in cases where direction to investigate. proceedings have adjourned or in other proceedings where LA has been directed to investigate a child’s circumstances under s.37. Legal Aid: Parent is automatically eligible if they are the Respondent to a public law children application. Duration: s.38(4) Interim orders last until the disposal of the proceedings. PUBLIC LAW ORDERS: Care guardian’s role: Exam structure – Public law (Children): * Appointed by the court to act for the child who is the subject of 1. Select the order likely to be made and set out the requirements the proceedings since a child is “a person under a disability”. for the order * LA must consult with CG where one is appointed. 2. Set out definitions * CG has a duty to safeguard the child’s interests/investigate and 3. Put forward the likely arguments on both sides. advise the court on the basis of that investigation. 4. State what factors the court will consider 5. Conclude Requirements for interim order: 1. Court must be satisfied that there are “reasonable grounds for Which order is likely to be made? believing” that the Threshold Criteria are satisfied. – s.38(2) 2. The court only needs to have a ‘reasonable’ belief that the Care and Supervision orders: Part IV CA 1989 Threshold Criteria are satisfied. 3. Lower standard than for final care/supervision order. s.31(1)(a) and s.33 CA 1989 Care order = places the child in the care of a designated LA where the LA acquires PR. Threshold Criteria: s.31(2) s.31(1)(b) and s.35 CA 1989 Supervision order = places the child under 1. Child must be suffering/likely to suffer significant harm – s.31(2)(a) the supervision of a designated LA, but LA does not acquire PR. s.31(10) In assessing whether harm is significant, the court will compare the child’s health/development with what is Who can apply: LA within whose area the child ordinarily resides. reasonably expected of a similar child. Effect of a care order: 2. Harm must be attributable to parental care falling below a reasonable standard/child being beyond parental control – s.91(12) A care order is effective until the child reaches 18 unless it is s.31(2)(b) terminated earlier. s.33 LA is given PR for child and power to determine extent to which Obj test: Would a reasonable parent give such care to meet the others with PR may meet it – “super PR”. needs of that particular child? s.33(7) While in force, no one may change the child’s surname/remove child from UK unless they have consent of everyone with PR/obtain You will look at the definition of harm and development in the next leave of court step. Family law – Revision notes | Page 7 of 20 s.34(1) Court will want to know that LA has plans for reasonable contact s.45(1) Effective: only for up to 8 days. This may be extended is LA with parents contained in care plan. applies to the court and court is satisfied that child is likely to suffer significant harm if not extended. Only 1 extension of 7 days is allowed. Care plan: s.31 If LA makes an application for care order, it should file a care plan If granted: anyone able to do so must produce the child to LA on request. with court outlining the proposed plans it has for the child. s.44(13) LA must allow child reasonable contact with parents, persons Care plans should include: with PR and persons with whom child was living with. (a) Overall aims – aim of timetable and plan. s.44(4) Gives the applicant parental responsibility – PR will cease once (b) Child’s needs – arising from race, culture, religion, language, EPO ends. health and special education. (c) Views of others – eg. parents or relevant agency. Usually EPO applications are made on a short notice. (d) Placement details and timetable – proposed placement, likely duration, healthcare arrangements, education etc. Police powers of removal: s.46 (e) Management/support by LA – who is responsible for implementing the plan. Police powers of removal = Police officer can remove a child to a safe place (for up to 72 hours) if he has reasonable cause to believe that the Permanence provisions: child would otherwise be likely to suffer significant harm. s.31(3A) Court only needs to consider the permanence provisions of the care plan and not the rest of the document. No need to obtain court order. Removals are usually followed by EPO or care order. s.31(3B) Permanence provisions = provisions setting out long-term plan for the upbringing of the child as provide for any of the following: Set out definitions: × The child to live with any parent of the child or with any other member/friend of the child’s family s.31(9) Harm: × Adoption 1. Ill-treatment = sexual, physical and non-physical × Long-term care not within above points 2. Impairment of health = physical and mental AND Contact arrangements: 3. Impairment of development = physical, emotional, behavioural, * Court invites parties to comment on the contact arrangements social and intellectual. in the care plan – s.34(11) * Court may make an order in relation to contact when it makes State what harm was caused to the child and how this harm is affecting care order – s.34(5) the child’s health and development. * LA should consider/allow the child reasonable contact with a list of persons including parents/guardians/stepparent with PR – Arguments on both sides: s.34(1) * LA cannot refuse contact between a child in its care and a person State that parenting will be judged objectively. – What would a listed in s.34(1) except in urgent cases and only for 7 days. reasonable parent do and how would a reasonable parent care for that * If wishes to refuse contact, LA should make application to court. particular child to meet their needs? – s.34(4) Put forward arguments likely to be raised by the Applicant in favour of Expert evidence and restrictions: the order. s.13(6) CFA 2014 Court has a duty to restrict expert evidence to that which is truly necessary to ensure a just resolution to the case. – this Example arguments: reduces the no. of expert witnesses who have to give evidence of trial * Child is suffering/likely to suffer significant harm/is beyond (compliments 26 week time limit). parental control. * The child is Gillick competent and does not want to stay with FPR 25.7(2) You must apply for court permission to put forward expert parents. evidence. * The child is not taken care of by their parents and this is unlikely to change eg. due to drug/alcohol abuse by parents FPR 25.7(2)(a)-(b) Application asking for permission should include: and thus is it in the best interests of the child that an order is * The field in which expert is required made. * Name of the proposed expert – if already selected. * The child is likely to be unlawfully removed from the * The issues to which the expert evidence is to relate jurisdiction. * If a single joint expert is to be used * Other matters in Practice Direction 25C/25D * A draft order Put forward arguments likely to be raised by the parent in opposition s.13(7) CFA 2014 Court must have regard to factors: of the order. (a) Any impact on children concerned (b) Issues in case to which expert evidence would relate Example arguments: (c) Questions which Court would require an expert to answer * Child is best taken care of by their parents. (d) What other expert evidence is already available * The child is Gillick competent and wants to stay with (e) What other evidence could be given by another person on parents. matters to be asked of the expert * Although these were problems in the past, these are not how (f) The impact, which granting permission would be likely to have things are done currently and care provided to the child has on timetable, duration and conduct of proceedings much improved. (g) Cost of expert evidence * Child needs regular contact with parents. (h) Any matters set out in FPR * Child needs a role model. Child protection orders: Child Assessment Orders: s.43 CA 1989 State what the court will consider: Child Assessment Orders = Order that enables LA to assess a child and State that court will consider welfare principle – s.1(1) CA determine if the child is suffering/likely to suffer significant harm so that a decision can be made as to the future involvement of the LA. State that court will ensure compliance with: 1. No delay principle – s.1(2) If the application is successful: court must set date by which assessment AND should commence and may only continue for up to 7 days. 2. No order principle – s.1(5) If the order is made: person who is in a position to do so must produce the child to the LA and comply with any other directions. State that court will apply the welfare checklist. – s.1(3) CA Emergency Protection Orders (EPO): s.44(1)(a) You can find these rules on page 4 and you will need to go through them if you have enough time. If you don’t have time in the exam, just state Emergency Protection Order = Authorises removal of the child from his the main rules and add a brief application and then conclude on how the home when it is essential for this to occur immediately. court is likely to decide in this case. s.37 If LA attempts to make investigations and is unreasonably denied access to child, LA may obtain an EPO if access to child is required as a matter of urgency. Family law – Revision notes | Page 8 of 20 PROCEDURE: Procedure – PLO 2014: Pre-proceedings: – Assessment (within 45 days from referral) – FGC/Child Protection Conference – Consideration of a child protection plan – Connected persons/SGO assessments – Legal planning meeting – Letter before proceedings Stage 1 – Issue and allocation (Day 1-day 2): – LA issues Application Form (C110A) / Annex Documents – These documents are sent to CAFCASS – Court allocates case – LA serve documents on parties (together with Notice of CMH) – Court give standard directions on Issue and Allocation – If required: contested ICO/ISO hearing (interim care order/ interim supervision order) Stage 2 – CMH (Day 12-day 18): – Advocates Meeting (no later than 2 days before CMH) × Consider the documents × Identify any expert evidence needed (FPR 25) × Draft a Case Management Order (CMO) – CMH × Court provides robust case management × Court considers timetable for the child/the proceedings × Court gives case management directions × Court makes CMO × Court lists the Issues Resolution Hearing (IRH) × If required, court lists a Further Case Management Hearing (FCMH) Stage 3 – IHR (No later than 7 days before IRH): – IHR is an advocates meeting which may become the final hearing – Identify remaining key issues – Explore how issues can be resolved or narrowed – Prepare further draft of CMO Stage 4 – Issue Resolution Hearing (IRH): – Resolve or narrow issues by hearing evidence – Can IRH be used as a final hearing? – If not, court to give final case management directions – Court will issue CMO Stage 5 – Final hearing (Within 26 weeks) Time limits: s.1(2) CA 1989 Must be made in accordance with ‘No Delay’ principle. PLO 2013 All care, supervisions and other Part IV proceedings must be completed within a max of 26 weeks. Not intended that time limit be considered flexible by the court. LINK BETWEEN PUBLIC AND PRIVATE LAW ORDERS: Special Guardianship Orders: * s.14A CA Special guardianship order = a long-term private law order giving PR to a special guardian who is not the child’s parent. * Maintains links between child and birth parents. * Court must have report on proposed order prepared by LA first * SGO assessment may be carried out at any stage in the proceedings if it is deemed appropriate. s.8 CA 1989 order/Combination orders: * Assessments to see if parents can look after child. * Other members of extended family may come forward or be approached for consideration as permanent carers. * If appropriate, open to the court to consider making a private law s.8 order – eg. a child arrangements order. * If court deems it necessary for there to be on-going LA involvement they can make a combination order. Family law – Revision notes | Page 9 of 20  FINANCIAL ORDERS Other factors to consider: * What are the parties’ assets compared to liabilities? State Exam Structure – Financial orders on dissolution: whether the liabilities are small/large in comparison to the total 1. s.25 and other factors assets? 2. Which order is the most likely? * If financially dominant party has a new partner/family who are 3. Conclude dependent on him or her, this will increase their needs. * Needs will be measured by assessing the standard of living S.25 AND OTHER FACTORS: during the relationship, generally the longer the relationship’s duration the more important this factor will be. s.25 factors: * A party may be expected to suffer some reduction in the standard of living having regard to the overall objective of a Highlight in your exam question: transition to independence. 1. The ages of the parties 2. Where the parties are currently living Standard of living prior to marriage breakdown: s.25(2)(c) 3. The price of the family/marital home, any outstanding mortgage amount, legal costs of selling the property Courts will try to maintain equality of standard of living and try to share 4. Whether there are any children and their ages any drop that parties may suffer in their standard of living equally. 5. Has one of the parties stopped working to take care of children/become a homemaker and how much they would earn Usually less relevant if marriage/CP was a short one/childless. on returning to work 6. Any pensions Age of the parties and duration of the marriage: s.25(2)(d) 7. Any other assets – eg. a car, second home. 8. Any agreement between the parties and whether this * If parties are young and marriage is short/childless: likely to be agreement is in dispute. expected to achieve financial independence – strong argument for clean break. s.25(1) MCA 1973 Court must have regard to all the circumstances with first consideration being given to the welfare of children of the family * If parties are still relatively young: much of their working life is under age 18. still ahead of them and will be able to become financially independent in the future. Identify which factor is likely to be determinative. * If parties are older: common for one party to have spent more Financial resources: s.25(2)(a) time at home than other. Do both parties have enough money to meet their needs? Set out how * If the couple has young children: possible that primary carer’s much surplus each parties have above the amount needed to meet their earning capacity, borrowing capacity and career prospects will basic needs. be diminished at least until children are at school – income clean break is not possible in the short term due to primary carer’s Family/marital home and mortgage raising capacity: needs. * Family/marital home is the most valuable asset. * If one party wishes to retain the property, can either party can * If one party has given up work to care for the family: will have afford the mortgage? a limited earning and borrowing capacity – require ongoing * Are there sufficient other assets in matrimonial pot to spousal maintenance so an immediate clean break is less likely. compensate the other party and enable them to rehouse? * If the home is sold, how should proceeds of sale be divided? * Long marriage: more entwined the parties’ finances are likely to * Is there a disparity between their mortgage raising capacities? be and more financially dependent – clean break is less likely. In Mortgage raising capacity is calculated as 3x gross salary. – eg. if long marriage cases, more likely that assets will have become Anna’s earning £14,000 pa, her mortgage raising capacity is integrated into parties’ joint funds, meaning that they may have £42,000. If she will earn £25,000 in the future as she gets more become matrimonial assets. experience, her mortgage raising capacity will grow to £75,000. Physical/mental disability of either party: s.25(2)(e) Other assets: * Second property, holiday home, bank accounts, shares, life Disability may lower earning capacity. insurance policies, valuable personal effects and pensions * Which one of these are matrimonial/non-matrimonial assets? Contributions to the family’s welfare: s.25(2)(f) * If ‘needs based’ case: capital is needed for a fair distribution of capital between the parties. Thus, the needs of both parties will Consider past and future contributions to the family’s welfare. not be satisfied unless all assets including any pre-acquired or inherited assets are factored into the matrimonial pot and White v White Non-financial contributions are recognised and there distributed. should be no discrimination between breadwinner and homemaker. Earning capacity: Conduct: s.25(2)(g) * Child-care and work expectations must be considered – did the mother give up her job to focus on childcare? If so, there is a The court will only take this factor into account if one/both of the disparity in future working potential parties’ conduct was “obvious and gross” and it would be inequitable to * Future earning capacity → likely pay rises and bonuses ignore it. – adultery is not included in conduct. * Relevant in determining spousal maintenance Loss of benefits: s.25(2)(h) New partner: * If one party is cohabiting with a new partner, new partner’s This includes: income will be taken into consideration to extent that this will * Loss in party’s pension on that party’s retirement/death – reduce that party’s share of household expenses – more money working party earns a pension and the homemaker would available to pay spousal maintenance. benefit from that pension if they did not divorce. * Share living expenses and outgoings – reduced needs of that * Share of the surrender value of a life insurance policy party living with a new partner. * Private health cover Financial needs: s.25(2)(b) Clean break principle: s.25A Firstly, the children and primary carer need a home. s.25A(1) Court must consider if a clean break would be appropriate. The needs of the primary carer will be greater than the needs of the Clean break = a settlement severing the financial ties between the other parents. Once the children and primary carer have a home, the parties with no continuing provision (capital clean break) or spousal resources (if sufficient), should provide for a home with the other parent periodical payments (income clean break). allowing for the children to have overnight contact with the parent. Pros: Cons: Then ensure that the parties have sufficient income to meet outgoings. Enables both parties to achieve Clean break is not always Calculate the deficit/surplus for both parties: Income – Outgoings. financial independence. desirable/achievable. Capital clean break – The family home may have to be sold and in that case the most appropriate settlement may be deferred until the sale. Family law – Revision notes | Page 10 of 20 Income clean break – Usually not be appropriate as one party might Use if: require ongoing spousal periodical payments from the other to meet * Sale proceeds of the family home would not be sufficient to their needs. enable both parties to re-house. * The family home meets needs of primary carer of children and if Income deficit = not an immediate income clean break due to sold, primary carer would need to purchase property of similar maintenance provision to deal with this. size/value. * There are sufficient other assets in matrimonial pot to Yardstick of equality: White v White compensate the other party for the loss of their interest in the family home. Court must test any proposed order against the yardstick of equality. * One party has good income and mortgage raising capacity and so will be able to afford to purchase new home without need to The court will depart from equality where that would be justified on realise share in the family home. basis of ‘needs’ taking into account the needs of the primary carer. – eg. * Immediate capital clean break. depart from equality if one of the parties has to take care of children and * Other party could prevent any claims of other assets as thus their needs are greater. compensation to the party who has lost their equity in the home. – eg. pension. Other factors: Mesher Order: Taxation: The home continues to be held by both parties as trustees of land. Income Tax: * Married and divorced persons are taxed separately on their own Provides for deferred capital clean break but will tie parties together for income unnecessarily long time until youngest child finishes full time education * Each is entitled to a personal allowance * Periodical payments are tax free in the hands of the recipient Income clean break cannot be achieved immediately if maintenance required to be able to continue paying mortgage and other outgoings on Inheritance Tax: the family home. * On death: a person is deemed to have made a transfer of value equal to the value of his or her entire estate Terms of the trust: Transfer will attract tax which will be taken from the estate of 1. One party has the sole right to occupy property until sale. the deceased Capital Gains Tax (CGT) – including family/marital 2. Sale will take place on trigger date. – eg. when youngest child home. reaches 18. * Transfers of property between married couples or civil partners 3. Upon sale, proceeds shall be divided according to proportions is on a “no gain, no loss” basis for CGT purposes – CGT does not agreed at time of order. apply. Use if: * Family/marital home: if one spouse has left the home more than * There are children of family and parties agree it would be best 9 months ago, might still avoid paying CGT upon transfer of for parent with care to remain in the family home with children interest to the remaining spouse if: – this avoids disruption. – Remaining spouse has continued to occupy * There are sufficient assets in matrimonial pot to compensate the family/marital home a his or her only main Residence. other party and to enable them to re-house now. – Transferring spouse has not elected to treat any other * Mother is modest and primary carer and children would need a property as his or her only or main residence. home of similar size and value if the home is sold but it would be inequitable to order transfer to primary carer since the family Welfare benefits: home is only asset of marriage. * On sale – as there is likely to be a greater equality of division if Child maintenance is disregarded for purposes of universal credit. the family home is largest capital asset – achieve 50/50 split in longer term which is less likely if property sold immediately. Spousal maintenance will be deducted from a person’s entitlement on a pound for pound basis. Not appropriate if: * Children are very young because non-occupying spouse will have Ensure that financial package does not endanger client’s benefits and to wait long time to receive their capital share of property. take them below subsistence level. * Parties would like a clean break. Client with capital in excess of £16,000 may mean that they are no longer Charge: eligible for Universal Credit and all passport benefits that go with it. Property may be placed in sole name of one of the parties and the Agreeing to level of spousal periodical payments which takes client just other is given a charge over a proportion of the proceeds of sale. above income threshold for Universal Credit may leave client worse off than if they were on Universal Credit. A charge will also release the transferee (usually the husband) from any covenants under the mortgage – making it easier for them to purchase CAPITAL ORDERS: of another property. Immediate sale and division of net proceeds: Provides for deferred clean break but ties parties together for a long time if the parties have young children. Property is sold and proceeds divided between parties. Lump sum order: Use if: * Selling the family/marital home could provide each party with a Requires one party to pay the other a sum of money. deposit on a new accommodation and together with their mortgage raising capacity would be able to be rehoused. Use as: * Neither party will be able to pay the mortgage repayments on * Compensation for loss of share in property/pension. the family home by themselves. * To pay off/reduce the mortgage. * Family home is the only valuable asset and if one party remains * Order ensuring that any liquid capital is shared equally – eg. in the home, the other will not be able to pay for a new home. money in bank accounts. * Parties want a clean break. – immediate sale provides for * Order ensuring that maintenance payments are paid to a party. immediate capital clean break. Primary carer’s outgoings will likely be less after a sale which could also lead to an income clean break. Not appropriate if: * Parties want no disruption. – children will move out of the home. * Depending on division of capital, one party (usually primary carer) may not be left. Outright transfer to one party: Property is transferred into one party’s sole name and other loses interest in family/marital home. Family law – Revision notes | Page 11 of 20 INCOME ORDERS: Appropriate if: Income orders are also called orders for spousal periodical payments One party requires financial support in the short term but can (spousal maintenance). reasonably be expected to achieve financial independence after certain amount of time. Two types of Periodical Payments Dismissal of the application: Nominal periodical payments Substantive periodical payments Court might dismiss a party’s claim for spousal periodical payments and Provide that one party must pay the Anything greater than a nominal sum. impose a bar on any future applications. It provides an income clean other a nominal sum either for joint break. lives or for a fixed term. Factors: × Choices made during marriage Appropriate if: Purpose: to keep the door open for have created needs on part of C * There are significant capital assets meaning if one party requires the party in receipt of the payments × Needs of parties ongoing support, their claim for periodical payments can be to vary the order upwards if × Termination of spousal capitalized. necessary i.e. gives more security maintenance with a transition to independence as soon as it is * Following a short, childless marriage. just and reasonable * Both parties are on welfare benefits and so neither can afford to × Standard of living (not decisive) provide the other with ongoing financial support. PENSIONS: Calculating the net effect of a proposal: 1. Calculate both parties’ incomes net of tax, national insurance Offsetting: and pension contributions Involves one party retaining the whole of their pension and compensating the other party with other assets from the matrimonial 2. Calculate both parties’ needs: pot. × Mortgage/rent × Utility bills Appropriate if: × Council tax * Pension is too small to be attached/shared. × Food * Parties are both young and so the party with a smaller or no × HNW cases include money for socializing, holidays etc. pension has plenty of time to build up their own fund. * Family home and a pension are the two main assets in the pot. 3. Proposed maintenance figure should leave both the paying party and the recipient with enough to meet their needs. Pension Attachment orders: If it does not, then the figure needs to be adjusted s.25B, 25C and 25D MCA Gives court the power to order the pension provider to pay all or part of a pension scheme member’s pension to 4. Court will consider factors: their ex-spouse when the pension becomes payable (usually on × If the home is sold: will primary carer have enough to retirement). meet their needs and the needs of the child? × Will it be just enough/more than enough? Pension sharing orders: × Are the parties able to pay for a smaller mortgage? * Divide pension sharing rights at the time of the divorce. × Income break could be achieved but the court is unlikely * Pension is divided and % to be paid to the recipient is then paid to want to leave party vulnerable to such finely balanced into a separate pension scheme in their sole name. financial situation. * Both parties have immediate control over their own pension × s.25 factors provisions. × Length and amount of spousal maintenance award – eg. £4,000 pa for a 4 year term. CHILD MAINTENANCE: × Is the award for an extendable/fixed term? × Is departure from equality justified? s.1 Child Support Act 1991 Natural parent of a qualifying child is responsible for maintaining them. Term of periodical payments: Parents have 3 choices for dealing with child maintenance: s.28(1)(a)-(b) MCA All orders for spousal periodical payments shall be * Family-based arrangements terminated automatically upon the death or remarriage of the recipient. * The ‘direct pay’ scheme * The ‘collect and pay’ scheme An order for joint lives: CMS will calculate the non-resident parent’s liability for child “Open ended” spousal periodical payments order. Paying party can maintenance by reference to the party’s gross income (rather than net). apply to vary payments downwards o to discharge or suspend the order. Recipient may apply for an upward variation in payments – eg. if recipient needs higher level of support to meet needs. Appropriate if: * Where parties have been married for a long time * Where one party has been heavily financially dependent on the other during the marriage = limited employment prospects Fixed term extendable order: s.31 MCA Order is made for a specific period, but it is extendable by variation. In order apply to extend the term of the order, then receiving party must apply to vary the order before the term expires. Achieves deferred income clean break. Appropriate if: * One party is the primary carer of young children and so has limited earning prospects, but may be able to increase their working hours and re-train when children are older * Allow primary carer to become self sufficient Fixed term non-extendable order: Receiving party is not permitted to apply for extension. It provides a deferred income clean break. Family law – Revision notes | Page 12 of 20  FINANCIAL ORDER PROCEDURES APPLICATION FOR FINANCIAL ORDER: SOLICITOR MEETING: Pre-issue: First interview steps: STEP 1: Attempt to resolve matters on a voluntary basis. 1. Establish all matrimonial assets. 2. Ascertain whether there are any immediate steps that need to Skip this step and next step and issue straight away if the other side: be taken in order to protect matrimonial assets. × Might try to hide assets 3. Comply with the Pre-Application Protocol. AND/OR 4. Consider whether to request advanced disclosure from the other × Will not engage in negotiations party and tell the client to gather information about their own position. If one party is being slow to disclose information or is not making a full 5. Ensure compliance with MIAM requirements. – FPR 3A PD or frank disclosure – skip this and next step and issue an application. 6. Ensure that your client’s docs are ready on time for disclosure. If parties make an agreement at any stage, then the settlement must be How can a party protect their assets? recorded in a consent order and lodged at court. Protect the family home: STEP 2: Go through non-court dispute resolution (MIAM). * If parties hold the home as joint tenants: Advise client to severe the joint tenancy and amend their will to prevent surviving