Family Law Revision Notes PDF

**[Consider at the first interview:]** 1. Client details 2. Client's story and objectives 3. Screening for issues -- eg. domestic abuse 4. Signpost client to ADR 5. Funding options **DIVORCE AND DISSOLUTION** **DIVORCE PROCEDURE:** **[Exam structure -- divorce:]** 1. **Length of marriage** 2. **Jurisdiction** 3. **Grounds for divorce** 4. **Procedure for divorce** 5. **Conclude** **Length of marriage:** **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.** Set out the length of marriage and see if it satisfies the criteria. **Jurisdiction:** **s.5(2) Domicile and Matrimonial Proceedings Act 1973 The most suitable jurisdiction for the proceedings should be England and Wales.** **[The English court will have jurisdiction if:]** - Both parties are habitually resident or domiciled in England/ Wales - Either party is domiciled in England/Wales - The respondent is habitually resident in England/Wales - The applicant has been habitually resident in England/Wales for 1 year immediately before the application. If so, they can commence proceedings in the UK. **Grounds for divorce:** **s.1(1) Matrimonial Causes Act 1973** **One/both parties to the marriage can apply to the court for a divorce order on the ground that the 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. **s.1(2) MCA 1973** An application must be accompanied by a statement of irretrievable breakdown. **s.1(3) MCA 1973** The court dealing with the application must take this statement as conclusive evidence that the marriage has broken down irretrievably. **Procedure for divorce:** \*Only discuss if specifically asked\* **[Before commencing proceedings:]** - [If sole Applicant:] notify Respondent before sending off the application to maintain a cooperative relationship. - **[Applicant must send the court:]** - The completed court application form - Including statement of irretrievable breakdown - Court fee - **[Financial Dispute Resolution Appointment:]** **Rule 9.15(7)(b) and 9.14(5)(d) Family Procedure Rules 2010** Court may treat a first appointment as 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. **FDRA =** Dispute resolution meeting where parties try to reach an agreement. -- **FPR 9.17(1) and (6)** **[If sole Applicant: once issued, serve on the other party:]** - The documents that were sent to court - Blank acknowledgement of service for them to fill in - Notice of proceedings received from Court (this will explain the procedure and next steps) **[Stage 1 -- Conditional order:]** - Court in the first instance will make a conditional order and send a copy to each party. -- **s.1(4)(a) MCA 1973** - Court will not make a conditional order unless the applicant(s) confirm that they wish the application to continue. -- **s.1(5)(a)-(b) MCA 1973** - The applicant(s) must give confirmation before the end of a 20-week period from the start of proceedings. -- **s.1(5) MCA 1973** - **FPR 2.9** Count clear days: 20 weeks and add 1 day **[Stage 2 -- Final order:]** - **Within 6 weeks** from the conditional order, the parties/sole applicant can apply for the court to turn it into a final divorce order. -- **s.1(4)(b) MCA 1973** - The court must wait for 6 weeks from the conditional order to make the final order. - The Lord Chancellor may amend these time frames but the whole process cannot exceed 26 weeks. -- **s.1(6)-(7) MCA 1973** - **FPR 2.9** Count clear days: 6 weeks and add 1 day - Application is dealt with on paper and the final order is granted and copies sent to both parties. - Once the final order has been granted that the marriage is over and parties are free to re-marry. **DISSOLUTION PROCEDURE FOR CIVIL PARTNERSHIPS:** **[Exam structure -- civil partnership:]** 1. **Length of civil partnership** 2. **Jurisdiction** 3. **Grounds for divorce** 4. **Procedure for divorce** 5. **Conclude** **Length of civil partnership:** **s.41 CPA 2004 The parties must have been civil partners for at least 1 year to issue proceedings as any other applications will be barred.** Set out the length of civil partnership and see if it satisfies the criteria. **Jurisdiction:** **s.5(2) Domicile and Matrimonial Proceedings Act 1973 The most suitable jurisdiction for the proceedings should be England and Wales.** **[The English court will have jurisdiction if:]** - Both parties are habitually resident or domiciled in England/ Wales - Either party is domiciled in England/Wales - The respondent is habitually resident in England/Wales - The applicant has been habitually resident in England/Wales for 1 year immediately before the application. If so, they can commence proceedings in the UK. **Grounds for dissolution:** **s.3-4 Divorce, Dissolution and Separation Act 2020** s.44 of CPA 2004 is amended and a new s.37A CPA 2004 is inserted. **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 ground that it has broken down irretrievably. **s.44(1A) CPA 2004** An application must be accompanied by a statement of irretrievable breakdown. **s.44(4) CPA 2004** The court dealing with the application must take this statement as conclusive evidence that the civil partnership has broken down irretrievably. **Procedure for dissolution:** **s.4(3) DDSA 2020** Procedure is set out. **[Before commencing proceedings:]** - [If sole Applicant:] notify Respondent before sending off the application to maintain a cooperative relationship. - **[Applicant must send the court:]** - The completed court application form - Including statement of irretrievable breakdown - Court fee - **[Financial Dispute Resolution Appointment:]** **FPR 9.15(7)(b) 9.14(5)(d)** Court may treat first appointments as 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. **FDRA =** Dispute resolution meeting where parties try to reach an agreement. -- **FPR 9.17(1) and (6)** **[If sole Applicant: once issued, serve on the other party:]** - The documents that were sent to court - Blank acknowledgement of service for them to fill in - Notice of proceedings received from Court (this will explain the procedure and next steps) **[Stage 1 -- Conditional order:]** - Court in the first instance will make a conditional order and send a copy to each party. -- **s.37A(1)(a) CPA 2004** - Court will not make a conditional order unless the applicant(s) confirm that they wish the application to continue. -- **s.37A(2) CPA 2004** - The applicant(s) must give confirmation before the end of a 20-week period from the start of proceedings (the second prescribed period). -- **s.37A(2) CPA 2004** - **FPR 2.9** Count clear days: 20 weeks and add 1 day **[Stage 2 -- Final order:]** - Within 6 weeks from the conditional order, the parties/sole applicant can apply for the court to turn it into a final order (the first prescribed period). -- **s.37A(1)(b) CPA 2004** - The court must wait for 6 weeks from the conditional order to make the final order. - The Lord Chancellor may amend the two prescribed periods but the whole process cannot exceed 26 weeks. -- **s.37A(4) CPA 2004** - **FPR 2.9** Count clear days: 6 weeks and add 1 day - Application is dealt with on paper and the final order is granted and copies of this will be sent to both parties. - Once the final order has been granted that the civil partnership is over and parties are free to re-marry. **IMPACT OF THE DDSA 2020:** **[The DDSA 2020 changed the law on divorce:]** 1. Removed the possibility of one party contesting the application. 2. Made the terminology simpler and accessible for laypersons -- Decree nisi is not called a conditional order and decree absolute is now a final order. 3. **It removed the requirement to establish one of five facts and allows for a joint application:** - Application must be accompanied by a statement by the applicant that the marriage or CP has broken down irretrievably - Statement will be taken as conclusive evidence - No need for any facts to prove this ground - Removes issue of fault from divorce/dissolution process 4. **Introduced new timeframes:** - [Old rules:] applicant could apply for decree nisi/ 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. - Minimum period between the conditional order being granted and the applicant(s) being able to apply for a final order (this will be 6 weeks and 1 day) - Mandatory cooling off period of 20 weeks between the commencement of proceedings and the applicant(s) being able to apply for a conditional order - Minimum time from applying for the divorce to obtaining the final order is 26 weeks. **TYPES OF NON-COURT DISPUTE RESOLUTION:** **[Arbitration:]** Parties appoint an arbitrator to decide the case and provide them with a binding decision. **[Matters most suited to this type of dispute resolution?]** Suits complicated financial cases in need of swift resolution. **[Not appropriate for:]** simple cases +-----------------------------------+-----------------------------------+ | **Pros** | **Cons** | +===================================+===================================+ | - Most similar to the court | - Most expensive option | | process and offers clients an | | | alternative to relying on a | | | court system that is at full | | | capacity and beset by delays | | | | | | - Bespoke, straightforward | | | process | | | | | | - Family dispute can be | | | resolved quickly and | | | privately | | | | | | - Parties select their own | | | tribunal | | | | | | - Final arbitral award is | | | binding on both parties with | | | more limited scope for appeal | | +-----------------------------------+-----------------------------------+ **[Mediation:]** A process in which couples cab decide for themselves what to do about their children and finances with the help of an impartial mediator. **[Matters most suited to this type of dispute resolution?]** - Cases involving children as mediation is child-focused and enabled children of a suitable age to meet with the mediator and express their feelings - Financial cases since any agreement becomes legally binding once it has been made into a Consent Order **[Not appropriate for:]** domestic abuse cases/harm to a child +-----------------------------------+-----------------------------------+ | **Pros** | **Cons** | +===================================+===================================+ | - Process is confidential so | - Voluntary process so nobody | | parties can explore their | can be forced to mediate | | options without prejudice | | | | - Mediation only works if both | | - Mediator is impartial and | parties are fully engaging | | will not take sides | with it. | | | | | - Clients are in charge of the | | | outcome | | | | | | - Costs less than half the | | | price and takes half the time | | | of going to court | | | | | | - Ensures better results for | | | families | | +-----------------------------------+-----------------------------------+ **[Solicitor negotiations:]** Solicitors from both sides negotiate → offers clients a process where they do not have to be in the same room as their ex-partner. **[Matters most suited to this type of dispute resolution?]** Most cases +-----------------------------------+-----------------------------------+ | **Pros** | **Cons** | +===================================+===================================+ | - This is the default option | - Costs dependent on both | | especially where one party | length and breadth of | | refuses to engage in other | negotiations | | alternative processes or | | | where a mediation has broken | - Tends to be more expensive | | down | than mediation since | | | increased involvement of | | - Clients do not have to be in | solicitors | | the same room | | | | | | - Between parties face-to-face | | | or solicitor's correspondence | | +-----------------------------------+-----------------------------------+ **[Collaborative Law:]** Couples can focus on child-centered issues in a supported environment. Process involves both parties and respective solicitors signing up at the start of the process to an agreement. **[Matters most suited to this type of dispute resolution?]** Most cases **[Not appropriate for:]** domestic abuse cases/cases with lack of trust and communication between the parties. +-----------------------------------+-----------------------------------+ | **Pros** | **Cons** | +===================================+===================================+ | - It is agreed that if the | - More expensive process given | | process breaks down, both | the involvement of both | | parties are required to | parties' solicitors at all of | | instruct new solicitors -- | the 4 way meetings | | strong incentive for everyone | | | to strive towards agreement | | | and resolution | | | | | | - Abiding threats are removed | | | | | | - Collaborative process -- | | | similar benefits to mediation | | | | | | - Confidentiality | | | | | | - Withdrawal by solicitor if | | | party is withholding | | | information -- forces | | | transparency | | | | | | - Concluded quicker than | | | conventional discussions or | | | court | | +-----------------------------------+-----------------------------------+ **CHILDREN -- PRIVATE LAW -- S.8 ORDERS** **[Parental rights and responsibilities:]** **[Exam structure -- s.8 orders:]** 1. **How to commence proceedings** 2. **Who has parental responsibility** 3. **Types of orders that party wants to apply for and whether they meet the requirements** 4. **Welfare checklist** 5. **Conclude** **Consider all of these steps** in a problem question regarding an issue on parental rights. **COMMENCING PROCEEDINGS:** The applicant should first negotiate with the other parent by sending out a solicitor's letter to this effect. **FPR 3.6** **12 BPD 5.3** If this is unsuccessful, then **the parties must attend a MIAM before making an application.** **[MIAM exemption:]** - Evidence of domestic abuse - Child protection concerns - Matter is urgent as there is a risk to life/limb/liberty/physical safety, risk of harm to the child/child abduction. **If attended MIAM without success of falls within an exemption, then the applicant can go ahead with an application.** **Churchill v Merthyr (2023)** The court has the discretion to insist on the parties resolving their dispute wholly via mediation. **PARENTAL RESPONSIBILITY (PR):** **State who the applicant is and see whether they have/can obtain PR.** **[Multiple parties may have parental responsibility:]** 1. The mother 2. The father 3. A woman in relationship with the mother 4. Non-parents in certain circumstances **Mother:** **s.2(1) and s.2(2)(a) CA 1989** Mothers have **automatic parental responsibility** without the need to make an application. **Father:** **s.2(1) CA 1989** Fathers only have **automatic parental responsibility** if they were married to the child's mother when the child was born. **[If not married to the mother, father can acquire PR by:]** 1. Being named as the father on the child's birth certificate -- **s.4(1)(a) CA 1989** 2. Entering into PR agreement with mother -- **s.4(1)(b)** 3. Applying for a court order -- **s.4(1)(c)** 4. Marrying the mother -- **s.2(3)** 5. Being appointed the child's guardian (but appointment will take effect on mother's death only) -- **s.5(6)** 6. **Obtaining a child arrangement order (CAO):** **[Consider factors:] Re H (Minors) (LA: Parental Rights) (No3) \[1991\]** - Degree of commitment towards the child - Degree of attachment between father and child - Father's reasons for applying -- child-focused? - Guiding principles will apply -- mainly the s.1(1) welfare principle. **Women in relationship with mother:** **s.2(1A)** A woman who is married to a woman/in CP when that woman is artificially inseminated will automatically have PR. **s.42(1) HFEA 2008** Such a woman is deemed to be a parent with PR. **s.43 HFEA 2008** Woman obtains PR if she marries/enter into CP mother. **Non-parents:** **s.25 Adoption and Children Act 2002** Adoption orders give adopter PR. **s.5(6) CA 1989** The child's guardian acquires PR (appointment effective 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. **s.12(2A)** [If person who is not parent/guardian obtains "spends time with CAO":] court may make a PR order in favour of that person. **[Step-parent/civil partner may obtain PR:]** Enter into PR agreement with all parents with PR. **s.4A CA 1989** If not possible, stepparent/CP can apply for PR order. **Rules on PR:** **[When does PR end?]** **Parents -- automatic PR:** PR ends when child is 18/adopted/parent dies. **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. **s.10(4) CA 1989** **[Who can apply for s.8 order?]** - Parents - Stepparents with PR - Anyone with "lives with CAO" in force. **s.10(5) CA 1989** **[Who can apply for a CAO:]** - Any party to a marriage/CP in relation to whom the child is a child of the family. - Anyone with whom the child has lived for 3 years (not beginning more than 5 years before and not ceasing more than 3 months before the application) - **Anyone with the consent of:** - Everyone with "lives with CAO" in force - Local Authority (LA) if child is in its care OR - In any other case, those who have PR for the child **s.10(1) CA 1989** Anyone else applying for a s.8 order must apply for court permission first. **s.10(8) CA 1989** A child can apply for a s.8 order on their own behalf -- court grants permission if the child has sufficient understanding to make the application. **THE TYPES OF ORDERS THAT COULD BE MADE:** **[Duration of s.8 orders:]** **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. **Child arrangements orders (CAO):** **["Lives with" CAO:]** If parties cannot agree which parent the child should live with post-separation one of them can apply for "lives with" order. Court may grant a "lives with" order in favour of both parents. -- more likely if the child has historically spent substantial time with both. Division of time need not be equal. **[Relocation with children:]** **s.13(1)(b) CA 1989** **s.1(1) Child Abduction Act 1984** No one can remove a child from the UK without written consent from everyone with PR/leave of the court. **[Exception:]** **s.13(2) CA 1989** Person with PR or "Lives with CAO" may remove the child for less than 1 month without the consent of the other parties with PR. -- short holidays. **Parent wanting to remove child from the jurisdiction should apply to the court for permission.** **[Consider factors:]** - Impact of relocation on the parent left behind if granted. - Impact on applicant if the application is refused. - 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 allow if parent and children have no connection to the country they are moving to. **[Change of surname:]** **s.13(1)(a) CA 1989** If there is a 'lives with' CAO, no person may change the child's surname without written consent of everyone with PR/leave of the court. **s.10(5) CA 1989** Any party to a marriage in relation to whom the child is a child of the family is entitled to apply for CAO. **[Taking the child on holiday:]** **s.13(1)(b) CA 1989** Parents are not allowed to take a child under 16 out of jurisdiction without the consent of other parent with PR/the court. **s.13(2) CA 1984** **[Exception:]** The parent with a **"lives with" CAO** in place, 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. **["Spends time with" CAO:]** CAO providing for contact can cover regular contact and contact during school holidays. CAOs can provide for direct and/or indirect contact. Order can be prescriptive about precisely when contact should take place or it can be more general. **[Domestic abuse:]** **A child benefits from having contact with both parents.** **12 JPD** **If there are domestic abuse allegations:** - Is the domestic abuse harmful to the child? - Has the child been subject to domestic abuse? - Does the child live in a home in which domestic abuse has been perpetrated -- child need not be conscious of the behaviour. - When deciding on child arrangement -- court must ensure that a contract order will not expose the child to an unmanageable risk of harm and will be in their best interests. - How does the court deal with non-compliance and other problems regarding contact? **s.11A** Court may make an order that a parent who is party to CAO proceedings must take part in activities helping to establish, maintain or improve involvement in the child's life for that parent/other parent. **s.11H** Court may ask a CAFCASS officer to report/monitor compliance with CAO. **s.11I** When the court makes/varies a CAO, it must attach a notice warning the parties of the consequences for non-compliance. **Specific issue order (SIO):** **SIO =** An order determining single issue disputes between the parties relating to PR. -- eg. where the child should go to school. **s.9(5) CA 1989** If the outcome can be achieved by a CAO, the court should not make a SIO/Prohibited steps order. **[Change of surname:]** **[If there is no "lives with" CAO in place:]** obtain consent of everyone with PR to change the child's surname. If not possible, apply for a specific issue order to the court. **Dawson v Wearmouth** Court can only order a change of surname if there is evidence that this would be an improvement in terms of the welfare of the child. **Re W Re A Re B (Change of Name) \[1999\]** If the reason for seeking a surname change is that the child's surname is not the same as the parent, this will not carry much weight. **Prohibited steps order (PSO):** **PSO =** An order preventing a party from taking specific steps in relation 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 the child to be known by a new surname. Prohibiting a party from removing a child from the UK. **THE CHILDREN ACT 1989'S GUIDING PRINCIPLES:** **The court will apply any relevant guiding principles in determining the application.** **s.3(1) Children Act 1989** Court should take into account all the rights, duties, powers, responsibilities and authority a parent of a child has in relation to the child/their property. **[Welfare Principle:]** **s.1(1)** The child's welfare will be the court's paramount consideration. **[No Delay Principle:]** **s.1(2)** The court take into account that any delay in determining the question is likely to prejudice the welfare of the child. **[No Order Principle:]** **s.1(5)** 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 the parents unless that would not be beneficial to the child's welfare. **[Presumption of Parental Involvement:]** **s.1(2A)** **s.1(4)(a)** **s.11 CFA 2014** Court will presume that the involvement of both parents in the child's life will further the child's welfare in circumstances. **[Presumption can be rebutted if:]** There is evidence that the involvement of both parents would be detrimental to the child's welfare -- decisions that there should be no involvement are rare. **12 JPD 7 (Child Arrangements and Contact Orders: Domestic Abuse and Harm)** **Cases of domestic abuse:** Court will have particular regard to any allegations/admissions of domestic abuse to the child/parent and carefully consider whether the presumption should be rebutted. **THE WELFARE CHECKLIST:** **Court will consider each of the below factors when making a decision.** You should spend most of your time in this question applying the facts to this checklist. **s.1(3)(a) CA 1989 [The ascertainable wishes and feelings of the child (considered in the light of the child's age and understanding).]** -- usually compiled in a s.7 report by the CAFSASS Family Court Adviser. [For older/more mature children:] more weight given to their wishes/ feelings. Maturity is determined on child's intelligence/understanding, not age. **Gillick v West Norfolk and Wisbech** Child must be **Gillick competent** -- must have sufficient understanding and intelligence to make a sound decision on the issue. **Area Health Authority** **[Court will consider:]** - The significance of the decision - If the child's wishes/feelings are influenced by one of the parents - Rarely separates siblings feelings **[The child's physical, emotional and educational needs:] s.1(3)(b)** Court will consider the disruption caused to the child's education by making/refusing the order. **[Physical needs:]** \*Can the parent meet the child's physical needs?\* - Needs for food/drinks - Need for safety and to remain free of injury - Need for shelter - Need for adequate clothing **[Emotional needs:]** - It is in the child's best interests to spend quality and bonding time with both parents. - The child's emotional needs include the maintenance of a positive relationship. **[Educational needs:]** \*Will the order disrupt the child's education?\* - Should not affect pick up times from school. - Should not involve a change of school. - Any holidays should not be taken in 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? **[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. **\ ** **CHILDREN -- PRIVATE LAW -- S.8 ORDER APPLICATION AND CHILD ABDUCTION** **S.8 ORDER APPLICATION PROCEDURE:** **[STEP 1. -- Attend MIAM:]** **FPR 3.6** **12 BPD 5.3** The parties must attend a MIAM. **12 BPD 5.3 and 5.9** Parties can attend MIAM together/separately. **[MIAM exemption -- the parties can refuse to attend:] FPR 3.8** **FPR 5.6** - Evidence of domestic abuse - Child protection concerns - Matter is urgent as there is a risk to life/limb/liberty/physical safety, risk of harm to the child/child abduction. **[The application must:]** **FPR 3.7** - Be signed by the applicant/solicitor/mediator to confirm that a MIAM exemption applies OR - Be signed by the mediator to confirm that MIAM was attended. **[STEP 2. -- Send application on Form C100 (day 1):]** - Court issues application - [Court will serve on the parties:] **12 BPD 8.8** - Issued application (C100 and C1A if applicable) - Blank acknowledgement Form C7 - Blank Form C1A - Serves on R only: Notice of Hearing - Court sends C100/C1A to CAFCASS -- **12 BPD 8.9** R must file the acknowledgement (and C1A if applicable) within 14 days from receipt. -- **12 BPD 8.9** **[STEP 3. -- Allocation/gatekeeping (day 2):]** **12 BPD 9** Checking any issues and paperwork. **[STEP 4. -- Safeguarding checks (within 17 working days from receipt osf application):]** - If application is for CAO/FCA, CAFCASS should carry out the safeguarding checks -- **12 BPD 13.1** - Lists types of checks to be carried out -- **12 BPD 13.3** - CAFCASS to set out outcome of checks in a safeguarding letter to the court at least 3 working days before FHDRA -- **12 BPD 13.7** **[STEP 5. -- FHDRA (Week 5 to week 6):]** - 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]** **CHILD ABDUCTION:** **Within the UK:** 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. **[If a parent has reason to believe the other will act without consent/ permission, they should apply for a PSO:]** - Apply without notice if risk is imminent - If not already a CAO in force, apply for one - s.8 order made in England and Wales is enforceable in other countries within the UK -- **s.25(1) FLA 1986** - Does not amount to a criminal offence. **Taking abroad from the UK:** **s.13(1)(b) CA 1989** **s.1(1) Child Abduction Act 1984** **No one can remove a child from the UK without written consent from everyone with PR/leave of the court.** [Exception:] **s.13(2) CA 1989** Person with PR or "Lives with CAO" may remove the child for less than 1 month without the consent of the other parties with PR. -- short holidays. More than 1 month is a criminal offence. **[Steps to prevent abduction:]** **[Prohibited steps order:]** **s.8 CA 1989** - If threat is imminent apply without notice so R will not be notified. - Apply together with application to surrender child's passport and order that passport agency does not issue new passport for child without consent of both parties. **[Tipsaff orders:]** **12 DPD 7** - Power to make orders to locate and retrieve children who have been abducted - Applications usually obtained without notice -- **FPR 12.47(e)** - Passport order - Location order - Collection order **[Port alert system:] 12 FPD 4.1-4.8** - Involves police informing ports that there is a threat that a child is about to be removed unlawfully from the country. - Threat must be real and imminent. -- **12 FPR 4.2\ ** **CHILDREN -- PUBLIC LAW** **PROVISIONS RELATING TO SERVICES:** **s.17(1) CA 1989** **Local Authority (LA) has a duty to safeguard/promote the welfare of children in need within their area and to promote their upbringings.** [A child is in need if:] **s.17(1)** a. Without LA services, they are unlikely to achieve/maintain/have the chance of achieving/maintaining a reasonable standard of health/ development. b. Their health/development is likely to be significantly impaired, or further impaired, without the provision for him of such services OR c. They are disabled **[Duty to investigate:]** **Para 1(1) Sched 2** **[LA must:]** - Take reasonable steps to identify the extent to which there are children in need in its area AND - Decide if a particular child is in need. LA must respond to a referral within 1 working day and to make a decision about the type of response that is required. **[Steps to take:]** 1. After acceptance of referral by LA, social worker should conduct a s.17 CA multi-agency assessment. **Timeframe** for completing assessment is max **45 working days.** 2. Social worker should not wait until the assessment concludes before commissioning services to support the child/their family. 3. If LA decides to provide services, social worker should prepare a multi-agency **Child in Need Plan** (setting out which agencies will provide which service to the child and family). 4. If suspicion that the child is suffering or likely to suffer harm, LA should hold a **strategy discussion** to enable it to decide whether to initiate enquiries. -- **s.47 CA 1989** 5. LA concludes that child is suffering/likely to suffer significant harm. 6. [LA will consider all other options before applying for an order:] - **Family Group Case Conference (FCG):** collaborative approach with agencies and Parents -- Aim is to establish a plan for protecting child or deciding on services that should be provided to child and family - **If a child protection plan is established:** designate a social worker as the lead professional. 7. Court may direct LA to investigate child's circumstances. -- **s.37** 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 direction to investigate. **[Legal Aid:]** Parent is automatically eligible if they are the Respondent to a public law children application. **PUBLIC LAW ORDERS:** **[Exam structure -- Public law (Children):]** 1. **Select the order likely to be made and set out the requirements for the order** 2. **Set out definitions** 3. **Put forward the likely arguments on both sides.** 4. **State what factors the court will consider** 5. **Conclude** **Which order is likely to be made?** **[Care and Supervision orders:] Part IV CA 1989** **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. **s.31(1)(b) and s.35 CA 1989** **Supervision order =** places the child under the supervision of a designated LA, but LA does not acquire PR. **[Who can apply:]** LA within whose area the child ordinarily resides. **[Effect of a care order:]** **s.91(12)** A care order is effective until the child reaches 18 unless it is terminated earlier. **s.33** LA is given PR for child and power to determine extent to which others with PR may meet it -- **"super PR".** **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 leave of court **LA cannot:** - Cause child to be brought by a different religion - Agree/disagree an adoption order - Appoint a guardian for the child The child will not be automatically removed from parents. LA has a duty to keep children with the family if possible and removal is a last resort. **[Effect of a supervision order:]** Usually made for 1 year only (may be extended up to 3 years in total). **s.35** LA will not have PR and LA has a duty to advise/assist/befriend the supervised child and take steps to give effect to the terms that the court will have stipulated in the supervision order. LA may later issue care order proceedings if LA believes they must intervene and remove the child. **[Requirements for the order:]** 1. Meet the Threshold Criteria AND 2. An order must be necessary [Threshold Criteria:] **s.31(2)** 1. **Child must be suffering/likely to suffer significant harm** -- **s.31(2)(a)** **s.31(10)** In assessing whether harm is significant, the court will compare the child's health/development with what is reasonably expected of a similar child. 2. **Harm must be attributable to parental care falling below a reasonable standard/child being beyond parental control** -- **s.31(2)(b)** **[Obj test:]** Would a reasonable parent give such care to meet the needs of that particular child? **You will look at the definition of harm and development in the next step.** [Is the order necessary?] - Court will use the threshold test by looking back to the time immediately before removal. - Court looks to the present and future -- how should the child be protected from the risk of harm in the future? **[Steps to take:]** 1. Before it can make an order, court must consider the care plan drafted by LA at the outset of proceedings and outlines of plans it has for child should the order be made. -- **s.31A** 2. If court is considering an application for care or supervision order, it must consider the other orders available to it including s.8 CA. 3. Court will assess the degree of risk and apply the least draconian order to the risk which will adequately protect the child. **[Interim orders:]** **s.38** Court may make interim orders which may be used in cases where proceedings have adjourned or in other proceedings where LA has been directed to investigate a child's circumstances under s.37. **[Duration:]** **s.38(4)** Interim orders last until the disposal of the proceedings. **[Care guardian's role:]** - Appointed by the court to act for the child who is the subject of the proceedings since a child is "a person under a disability". - LA must consult with CG where one is appointed. - CG has a duty to safeguard the child's interests/investigate and advise the court on the basis of that investigation. **[Requirements for interim order:]** 1. Court must be satisfied that there are "reasonable grounds for believing" that the Threshold Criteria are satisfied. -- **s.38(2)** 2. The court only needs to have a 'reasonable' belief that the Threshold Criteria are satisfied. 3. Lower standard than for final care/supervision order. [Threshold Criteria:] **s.31(2)** 1. **Child must be suffering/likely to suffer significant harm** -- **s.31(2)(a)** **s.31(10)** In assessing whether harm is significant, the court will compare the child's health/development with what is reasonably expected of a similar child. 2. **Harm must be attributable to parental care falling below a reasonable standard/child being beyond parental control** -- **s.31(2)(b)** **[Obj test:]** Would a reasonable parent give such care to meet the needs of that particular child? **You will look at the definition of harm and development in the next step.** **s.34(1)** Court will want to know that LA has plans for reasonable contact with parents contained in care plan. [Care plan:] **s.31** If LA makes an application for care order, it should file a care plan with court outlining the proposed plans it has for the child. **Care plans should include:** a. Overall aims -- aim of timetable and plan. b. Child's needs -- arising from race, culture, religion, language, health and special education. c. Views of others -- eg. parents or relevant agency. d. Placement details and timetable -- proposed placement, likely duration, healthcare arrangements, education etc. e. Management/support by LA -- who is responsible for implementing the plan. **Permanence provisions:** **s.31(3A)** Court only needs to consider the permanence provisions of the care plan and not the rest of the document. **s.31(3B) Permanence provisions =** provisions setting out long-term plan for the upbringing of the child as provide for any of the following: - The child to live with any parent of the child or with any other member/friend of the child's family - Adoption - Long-term care not within above points **Contact arrangements:** - Court invites parties to comment on the contact arrangements in the care plan -- **s.34(11)** - Court may make an order in relation to contact when it makes care order -- **s.34(5)** - LA should consider/allow the child reasonable contact with a list of persons including parents/guardians/stepparent with PR -- **s.34(1)** - LA cannot refuse contact between a child in its care and a person listed in s.34(1) except in urgent cases and only for **7 days.** - If wishes to refuse contact, LA should make application to court. -- **s.34(4)** **Expert evidence and restrictions:** **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 reduces the no. of expert witnesses who have to give evidence of trial (compliments 26 week time limit). **FPR 25.7(2)** You must apply for court permission to put forward expert evidence. **FPR 25.7(2)(a)-(b)** [Application asking for permission should **include:**] - The field in which expert is required - Name of the proposed expert -- if already selected. - The issues to which the expert evidence is to relate - If a single joint expert is to be used - Other matters in Practice Direction 25C/25D - A draft order **s.13(7) CFA 2014** [Court must have regard to **factors:**] a. Any impact on children concerned b. Issues in case to which expert evidence would relate c. Questions which Court would require an expert to answer d. What other expert evidence is already available e. What other evidence could be given by another person on matters to be asked of the expert f. The impact, which granting permission would be likely to have on timetable, duration and conduct of proceedings g. Cost of expert evidence h. Any matters set out in FPR **[Child protection orders:]** **[Child Assessment Orders:]** **s.43 CA 1989** **Child Assessment Orders =** Order that enables LA to assess a child and 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. [If the application is successful:] court must set date by which assessment should commence and may only continue for up to **7 days.** [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. **[Emergency Protection Orders (EPO):]** **s.44(1)(a)** **Emergency Protection Order =** Authorises removal of the child from his home when it is essential for this to occur immediately. **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. **s.45(1)** [Effective:] only for up to **8 days.** This may be extended is LA 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. [If granted:] anyone able to do so must produce the child to LA on request. **s.44(13)** LA must allow child **reasonable contact with parents**, persons with PR and persons with whom child was living with. **s.44(4)** Gives the applicant parental responsibility -- PR will cease once EPO ends. Usually EPO applications are made on a **short notice.** **[Police powers of removal:]** **s.46** **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 child would otherwise be likely to suffer significant harm. No need to obtain court order. Removals are usually followed by EPO or care order. **Set out definitions:** **s.31(9)** **[Harm:]** 1. Ill-treatment = sexual, physical and non-physical 2. Impairment of health = physical and mental AND 3. Impairment of development = physical, emotional, behavioural, social and intellectual. State what harm was caused to the child and how this harm is affecting the child's health and development. **Arguments on both sides:** **State that parenting will be judged objectively.** -- What would a reasonable parent do and how would a reasonable parent care for that particular child to meet their needs? **Put forward arguments likely to be raised by the Applicant in favour of the order.** **Put forward arguments likely to be raised by the parent in opposition of the order.** **State what the court will consider:** **State that court will consider welfare principle -- s.1(1) CA** **[State that court will ensure compliance with:]** 1. **No delay principle -- s.1(2)** **AND** 2. **No order principle -- s.1(5)** **State that court will apply the welfare checklist. -- s.1(3) CA** 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 the main rules and add a brief application and then conclude on how the court is likely to decide in this case. **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. **\ FINANCIAL ORDERS** **[Exam Structure -- Financial orders on dissolution:]** 1. **s.25 and other factors** 2. **Which order is the most likely?** 3. **Conclude** **S.25 AND OTHER FACTORS:** **s.25 factors:** **[Highlight in your exam question:]** 1. The ages of the parties 2. Where the parties are currently living 3. The price of the family/marital home, any outstanding mortgage amount, legal costs of selling the property 4. Whether there are any children and their ages 5. Has one of the parties stopped working to take care of children/become a homemaker and how much they would earn on returning to work 6. Any pensions 7. Any other assets -- eg. a car, second home. 8. Any agreement between the parties and whether this agreement is in dispute. **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 under age 18. **Identify which factor is likely to be determinative.** **[Financial resources:] s.25(2)(a)** Do both parties have enough money to meet their needs? Set out how much surplus each parties have above the amount needed to meet their basic needs. **[Family/marital home and mortgage raising capacity:]** - Family/marital home is the most valuable asset. - If one party wishes to retain the property, can either party can afford the mortgage? - Are there sufficient other assets in matrimonial pot to compensate the other party and enable them to rehouse? - If the home is sold, how should proceeds of sale be divided? - Is there a disparity between their mortgage raising capacities? Mortgage raising capacity is calculated as 3x gross salary. -- eg. if Anna's earning £14,000 pa, her mortgage raising capacity is £42,000. If she will earn £25,000 in the future as she gets more experience, her mortgage raising capacity will grow to £75,000. **[Other assets:]** - Second property, holiday home, bank accounts, shares, life insurance policies, valuable personal effects and pensions - Which one of these are matrimonial/non-matrimonial assets? - **If 'needs based' case:** capital is needed for a fair distribution of capital between the parties. Thus, the needs of both parties will not be satisfied unless all assets including any pre-acquired or inherited assets are factored into the matrimonial pot and distributed. **[Earning capacity:]** - Child-care and work expectations must be considered -- did the mother give up her job to focus on childcare? If so, there is a disparity in future working potential - Future earning capacity → likely pay rises and bonuses - Relevant in determining spousal maintenance **[New partner:]** - If one party is cohabiting with a new partner, new partner's income will be taken into consideration to extent that this will reduce that party's share of household expenses -- more money available to pay spousal maintenance. - Share living expenses and outgoings -- reduced needs of that party living with a new partner. **[Financial needs:] s.25(2)(b)** **Firstly, the children and primary carer need a home.** The needs of the primary carer will be greater than the needs of the other parents. Once the children and primary carer have a home, the resources (if sufficient), should provide for a home with the other parent allowing for the children to have overnight contact with the parent. **Then ensure that the parties have sufficient income to meet outgoings.** Calculate the deficit/surplus for both parties: Income -- Outgoings. **[Other factors to consider:]** - What are the parties' assets compared to liabilities? State whether the liabilities are small/large in comparison to the total assets? - If financially dominant party has a new partner/family who are dependent on him or her, this will increase their needs. - Needs will be measured by assessing the standard of living during the relationship, generally the longer the relationship's duration the more important this factor will be. - A party may be expected to suffer some reduction in the standard of living having regard to the overall objective of a transition to independence. **[Standard of living prior to marriage breakdown:] s.25(2)(c)** Courts will try to maintain equality of standard of living and try to share any drop that parties may suffer in their standard of living equally. Usually less relevant if marriage/CP was a short one/childless. **[Age of the parties and duration of the marriage:] s.25(2)(d)** - **If parties are young and marriage is short/childless:** likely to be expected to achieve financial independence -- strong argument for **clean break.** - **If parties are still relatively young:** much of their working life is still ahead of them and will be able to become **financially independent in the future.** - **If parties are older:** common for one party to have spent more time at home than other. - **If the couple has young children:** possible that primary carer's earning capacity, borrowing capacity and career prospects will be diminished at least until children are at school -- income **clean break is [not] possible** in the short term due to primary carer's needs. - **If one party has given up work to care for the family:** will have a limited earning and borrowing capacity -- require ongoing spousal maintenance so an immediate **clean break is [less] likely.** - **Long marriage:** more entwined the parties' finances are likely to be and more financially dependent -- **clean break is [less] likely.** In long marriage cases, more likely that assets will have become integrated into parties' joint funds, meaning that they may have become matrimonial assets. **[Physical/mental disability of either party:] s.25(2)(e)** Disability may lower earning capacity. **[Contributions to the family's welfare:] s.25(2)(f)** Consider past and future contributions to the family's welfare. **White v White** Non-financial contributions are recognised and there should be no discrimination between breadwinner and homemaker. **[Conduct:] s.25(2)(g)** The court will only take this factor into account if one/both of the parties' conduct was "obvious and gross" and it would be inequitable to ignore it. -- adultery is not included in conduct. **[Loss of benefits:] s.25(2)(h)** **[This includes:]** - Loss in party's pension on that party's retirement/death -- working party earns a pension and the homemaker would benefit from that pension if they did not divorce. - Share of the surrender value of a life insurance policy - Private health cover **[Clean break principle:] s.25A** **s.25A(1)** Court must consider if a clean break would be appropriate. **Clean break =** a settlement severing the financial ties between the parties with no continuing provision (capital clean break) or spousal periodical payments (income clean break). +-----------------------------------+-----------------------------------+ | **[Pros:]** | **[Cons:]** | | | | | Enables both parties to achieve | Clean break is not always | | 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. [Income clean break] -- Usually not be appropriate as one party might require ongoing spousal periodical payments from the other to meet their needs. **Income deficit =** not an immediate income clean break due to maintenance provision to deal with this. **[Yardstick of equality:]** **White v White** Court must test any proposed order against the **yardstick of equality.** The court will depart from equality where that would be justified on basis of 'needs' taking into account the needs of the primary carer. -- eg. depart from equality if one of the parties has to take care of children and thus their needs are greater. **Other factors:** **[Taxation:]** **[Income Tax:]** - Married and divorced persons are taxed separately on their own income - Each is entitled to a personal allowance - Periodical payments are tax free in the hands of the recipient **[Inheritance Tax:]** - On death: a person is deemed to have made a transfer of value equal to the value of his or her entire estate Transfer will attract tax which will be taken from the estate of the deceased Capital Gains Tax (CGT) -- including family/marital home. - Transfers of property between married couples or civil partners is on a "no gain, no loss" basis for CGT purposes -- CGT does not apply. - [Family/marital home: if one spouse has left the home more than 9 months ago, might still avoid paying CGT upon transfer of interest to the remaining spouse if:] - Remaining spouse has continued to occupy family/marital home a his or her only main Residence. - Transferring spouse has not elected to treat any other property as his or her only or main residence. **[Welfare benefits:]** **Child maintenance** is disregarded for purposes of universal credit. **Spousal maintenance** will be deducted from a person's entitlement on a pound for pound basis. Ensure that **financial package** does [not] endanger client's benefits and take them below subsistence level. Client with capital in excess of £16,000 may mean that they are no longer eligible for Universal Credit and all passport benefits that go with it. Agreeing to level of **spousal periodical payments** which takes client just above income threshold for Universal Credit may leave client worse off than if they were on Universal Credit. **CAPITAL ORDERS:** **Immediate sale and division of net proceeds:** **Property is sold and proceeds divided between parties.** **[Use if:]** - Selling the family/marital home could provide each party with a deposit on a new accommodation and together with their mortgage raising capacity would be able to be rehoused. - Neither party will be able to pay the mortgage repayments on the family home by themselves. - Family home is the only valuable asset and if one party remains in the home, the other will not be able to pay for a new home. - Parties want a clean break. -- immediate sale provides for 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.** **[Use if:]** - Sale proceeds of the family home would not be sufficient to enable both parties to re-house. - The family home meets needs of primary carer of children and if sold, primary carer would need to purchase property of similar size/value. - There are sufficient other assets in matrimonial pot to compensate the other party for the loss of their interest in the family home. - One party has good income and mortgage raising capacity and so will be able to afford to purchase new home without need to realise share in the family home. - Immediate capital clean break. - Other party could prevent any claims of other assets as compensation to the party who has lost their equity in the home. -- eg. pension. **Mesher Order:** **The home continues to be held by both parties as trustees of land.** Provides for deferred capital clean break but will tie parties together for unnecessarily long time until youngest child finishes full time education **Income clean break cannot be achieved immediately** if maintenance required to be able to continue paying mortgage and other outgoings on the family home. **[Terms of the trust:]** 1. One party has the sole right to occupy property until sale. 2. Sale will take place on trigger date. -- eg. when youngest child reaches 18. 3. Upon sale, proceeds shall be divided according to proportions agreed at time of order. **[Use if:]** - There are children of family and parties agree it would be best for parent with care to remain in the family home with children -- this avoids disruption. - There are sufficient assets in matrimonial pot to compensate the other party and to enable them to re-house now. - Mother is modest and primary carer and children would need a 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 home is only asset of marriage. - On sale -- as there is likely to be a greater equality of division if the family home is largest capital asset -- achieve 50/50 split in longer term which is less likely if property sold immediately. **[Not appropriate if:]** - Children are very young because non-occupying spouse will have to wait long time to receive their capital share of property. - Parties would like a clean break. **Charge:** **Property may be placed in sole name of one of the parties and the other is given a charge over a proportion of the proceeds of sale.** A charge will also release the transferee (usually the husband) from any covenants under the mortgage -- making it easier for them to purchase of another property. Provides for deferred clean break but ties parties together for a long time if the parties have young children. **Lump sum order:** **Requires one party to pay the other a sum of money.** **[Use as:]** - Compensation for loss of share in property/pension. - To pay off/reduce the mortgage. - Order ensuring that any liquid capital is shared equally -- eg. money in bank accounts. - Order ensuring that maintenance payments are paid to a party. **INCOME ORDERS:** Income orders are also called orders for spousal periodical payments (spousal maintenance). **Two types of Periodical Payments** +-----------------------------------+-----------------------------------+ | **Nominal periodical payments** | **Substantive periodical | | | payments** | +===================================+===================================+ | Provide that one party must pay | Anything greater than a nominal | | the other a nominal sum either | sum. | | for joint lives or for a fixed | | | term. | **Factors:** | | | | | **Purpose:** to keep the door | - Choices made during marriage | | open for the party in receipt of | have created needs on part of | | the payments to vary the order | C | | upwards if necessary i.e. gives | | | more security | - Needs of parties | | | | | | - Termination of spousal | | | maintenance with a transition | | | to independence as soon as it | | | is just and reasonable | | | | | | - Standard of living (not | | | decisive) | +-----------------------------------+-----------------------------------+ **[Calculating the net effect of a proposal:]** 1. Calculate both parties' incomes net of tax, national insurance and pension contributions 2. **[Calculate both parties' needs:]** - Mortgage/rent - Utility bills - Council tax - Food - HNW cases include money for socializing, holidays etc. 3. Proposed maintenance figure should leave both the paying party and the recipient with enough to meet their needs. [If it does not,] then the figure needs to be adjusted - If the home is sold: will primary carer have enough to meet their needs and the needs of the child? - Will it be just enough/more than enough? - Are the parties able to pay for a smaller mortgage? - Income break could be achieved but the court is unlikely to want to leave party vulnerable to such finely balanced financial situation. - s.25 factors - Length and amount of spousal maintenance award -- eg. £4,000 pa for a 4 year term. - Is the award for an extendable/fixed term? - Is departure from equality justified? **[Term of periodical payments:]** **s.28(1)(a)-(b) MCA** All orders for spousal periodical payments shall be terminated automatically upon the death or remarriage of the recipient. **[An order for joint lives:]** "Open ended" spousal periodical payments order. Paying party can 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. [Appropriate if:] One party requires financial support in the short term but can reasonably be expected to achieve financial independence after certain amount of time. **[Dismissal of the application:]** Court might dismiss a party's claim for spousal periodical payments and impose a bar on any future applications. It provides an income clean break. [Appropriate if:] - There are significant capital assets meaning if one party requires ongoing support, their claim for periodical payments can be capitalized. - Following a short, childless marriage. - Both parties are on welfare benefits and so neither can afford to provide the other with ongoing financial support. **PENSIONS:** **[Offsetting:]** Involves one party retaining the whole of their pension and compensating the other party with other assets from the matrimonial pot. **[Appropriate if:]** - Pension is too small to be attached/shared. - Parties are both young and so the party with a smaller or no pension has plenty of time to build up their own fund. - Family home and a pension are the two main assets in the pot. **[Pension Attachment orders:]** **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 their ex-spouse when the pension becomes payable (usually on retirement). **[Pension sharing orders:]** - Divide pension sharing rights at the time of the divorce. - Pension is divided and % to be paid to the recipient is then paid into a separate pension scheme in their sole name. - Both parties have immediate control over their own pension provisions. **CHILD MAINTENANCE:** **s.1 Child Support Act 1991** Natural parent of a qualifying child is responsible for maintaining them. [Parents have 3 choices for dealing with child maintenance:] - Family-based arrangements - The 'direct pay' scheme - The 'collect and pay' scheme CMS will calculate the non-resident parent's liability for child maintenance by reference to the party's gross income (rather than net). **\ ** **FINANCIAL ORDER PROCEDURES** **SOLICITOR MEETING:** **[First interview steps:]** 1. Establish all matrimonial assets. 2. Ascertain whether there are any immediate steps that need to be taken in order to protect matrimonial assets. 3. Comply with the Pre-Application Protocol. 4. Consider whether to request advanced disclosure from the other party and tell the client to gather information about their own position. 5. Ensure compliance with MIAM requirements. -- **FPR 3A PD** 6. Ensure that your client's docs are ready on time for disclosure. **[How can a party protect their assets?]** **[Protect the family home:]** - **If parties hold the home as joint tenants:** Advise client to severe the joint tenancy and amend their will to prevent surviving tenant being entitled to their share of the home on their death. - **If the home is held in one party's sole name then the other party will have statutory home rights:** - Non-owning party should register their home rights to protect it (for registered property, use a s.30 FLA 1996 notice) - Prevent property being sold without notice being given to the non-owning spouse/CP - If non-owning party is in occupation: protect them from eviction. - If non-owning party is not in occupation: provide them with the right to enter and occupy the property with leave of the court. **[Protect other property:]** - Register unilateral notice against registered land or a pending land action against unregistered land. - Not confined to matrimonial property and is effective beyond termination of marriage. - **Preventing disposal/dissipation of assets:** - Court can make such order as it thinks fit to prevent a party from dealing with a particular asset. -- **s.37(2)(a) MCA** - There must be ample evidence to convince the court that an order is necessary to prevent a disposition. -- mere suspicion is not enough. - Setting aside an existing disposition: court may only set aside a disposition if it is reviewable as defined in s.37(4). -- **s.37(2)(b) MCA** Disposition must be about to be made or have been made with the intention of defeating the other party's claim for financial relief. Presumption of intention if the disposition is about to take place or took place less than 3 years ago and the disposition will have the effect of defeating the applicant's claim for a financial order. **PRELIMINARY NEGOTIATIONS AND SETTLEMENT:** **[Voluntary Disclosure:]** - Full and frank disclosure of their financial position. - Disclosure of all capital assets, liabilities and income details. - Duty of financial disclosure exists as an absolute duty for both parties. - Parties may raise questions to resolve any queries they may have about the other party's disclosure. **[Consent orders:] FPR 9.26** 1. **Filed online with the court:** - Form A - 2 copies of draft order (1 must be signed by both parties) - Statement of information for a consent order (Form D81) - The court fee 2. **Judge will consider consent order** -- Judge can reject consent order and require parties to negotiate Parties should try to reach a settlement -- if possible, parties should have voluntary disclosure followed by negotiations. **APPLICATION FOR FINANCIAL ORDER:** **Pre-issue:** **STEP 1: Attempt to resolve matters on a voluntary basis.** [Skip this step and next step and issue straight away if the other side:] - Might try to hide assets AND/OR - Will not engage in negotiations If one party is being slow to disclose information or is not making a full or frank disclosure -- skip this and next step and issue an application. If parties make an agreement at any stage, then the settlement must be recorded in a consent order and lodged at court. **STEP 2: Go through non-court dispute resolution (MIAM).** **FPR 3A PD** Parties must attend MIAM before issuing application for financial orders. If mediator decides case is not suitable for mediation = must sign Form A **Issue the financial order application (Form A):** **FPR 1.1** Comply with the overriding objective. [Applicant must file:] - Form A (including the notice of \[intention to proceed with the application for a financial order at section 10 of the form) - Fee [The court will:] - **Allocate a date for the First Appointment 12-16 weeks from the date of the application:** **FPR 9.12(1)(a)** This date cannot be altered without leave of the court - **Serve on R within 4 days of issue:** **FPR 9.12(1)(b)** - Sealed copy of Form A - Notice of issue of proceedings (Form C) - Date of the First Appointment - Date by which parties should exchange Form E's and other documents in advance of First Appointment Applicant's solicitor should send a follow up letter to R's solicitor to check that the papers have been received by the R. [If there is a property at issue subject to mortgage:] A's solicitor must serve copy of issued Form A on the mortgagee. [If there is a pension at issue:] A must serve copy of Form A on pension company. **The First Appointment:** **[Prior to the First Appointment, parties must:] FPR 9.14(5)** - Simultaneously exchange Forms E at least 35 days before the First Appointment date and file copies with court -- **FPR 9.14(1)** - **At least 14 days before First Appointment, file and serve FA docs:** **FPR 9.14(5)** i. Draft questionnaire ii. Chronology iii. Statement of issues (clarifies which parts are in dispute) iv. Notice as to whether FA can be treated as FDR - File an estimate of costs incurred so far on Form H -- **FPR 9.27(1)** **FPR 9.27(2)** Each party must file and serve an estimate of costs if that party expects to incur up to the FDR appointment if no settlement is reached. **FPR 9.27(1)** At every hearing or appointment, each party should also file an estimate of costs incurred so far. **[The First Appointment:]** - A FA will narrow the issues and get directions from judge to take case forward. - Both parties and their solicitors must attend the hearing. - The judge will make directions as to what further financial disclosure must be produced by the parties and will decide which questions on each party's questionnaire are to be answered. - **Court will make directions for assets to be valued:** - Judge may direct for parties to appoint single joint expert to value assets. - Judge will only direct this where cost is proportionate to total assets. - **FPR 9.15(4)** Judge must direct that the case will be referred to a FDR appointment unless First Appointment has been used as a FDR and FDR has been effective or appointment inappropriate. - **FPR 9.15(5)** If judge believes FDR is not appropriate then further directions appointment or final hearing must be fixed. - Instead of using hearing, judge may use First Appointment as FDR if both parties have filed notice indicating that case is ready for FDR and both parties have made full and frank disclosure. **Prior to FDR:** - If possible, parties should make offers to settle. - **FDR 9.17(3)** Applicant must file copies of all offers at least 7 days before FDR and responses to them. - Both parties must comply with directions made at First Appointment. - Both prepare Form H before FDR (legal costs up to and including duration of financial proceedings) - **FDR 9.27(3)** Not less than 1 day before FDR appointment, each party must file and serve an estimate of costs that party expects to incur up to final hearing if settlement is not reached. **The FDR:** **FPR 9.17(1)** **FDR =** without prejudice meeting designed to facilitate discussion/negotiation. **FPR 9.17(6)** Parties attending FDR must use their best endeavours to reach agreement on the matters in use between them. **FPR 9.17(2)** Presided over by District Judge, however the judge is precluded from being involved with the case at any further hearing. Judge gives a non-binding indication as to how he/she would decide the case. **FPR 9.17(10)** Both parties must personally attend unless court orders otherwise. If disclosure has occurred and directions have been complied with, negotiations usually take place at court prior to going before judge. **[If parties reach an agreement:]** - Agreement will be recorded in a consent order which the parties usually draft at court. - District Judge will consider this and will approve it (if considers the order to be fair) -- **FPR 9.17(8)** - No record will be kept of negotiations and all proposals filed will be returned at the end of the hearing -- **FPR 9.17(5)** - What if no settlement/agreement takes place? - If parties do not settle at FDR, judge will make directions to take case forward to final hearing. -- **FPR 9.17(9)** **FPR 9.27A** Imposes a duty on parties to make open proposals for settlement 21 days after an FDR Hearing. **Prior to Final Hearing:** Both parties must comply with any directions made at FDR. **[Parties must file offers:]** - A must file open offer 14 days before the final hearing (FH). - R must file open offer 7 days before FH -- **FPR 9.28(1)-(2)** - Parties must make open proposals for settlement 21 days after an FDR hearing or 42 days before final hearing where there has been no FDR hearing. -- **FPR 9.27A** Not less than 14 days before the date fixed for FH file and serve statement giving full particulars of all costs in respect of proceedings which the filing party has incurred or expects to incur. -- **FPR 2020** Form H1: file and serve 14 days before. **FPR 27A PD** **[A must prepare bundle for hearing containing:]** - Preliminary documents (parties' position statements, skeleton arguments and up-to date chronology) - Applications and orders - Statements and affidavits - Valuation report **Final Hearing:** - If parties have not settled, the judge will make a decision and issue a court order. - Judge will consider evidence of both parties and make a decision based on s.25 factors. **Final order:** Cannot be made be made until a conditional order has been pronounced. **FINANCIAL DISCLOSURE:** **[Disclosure and self-help:]** **Imerman v Tchenguiz** If spouse passes confidential docs belonging to the other party to their solicitor, they commit breach of confidence and solicitor may be prohibited from acting for that party and/or being found guilty of aiding and abetting a criminal act. **[Uncooperative Respondents:]** - If R fails to engage with the court process: A should apply to the court for an order that R provides their disclosure. - May be dealt with at First Appointment or as an interim application prior to First Appointment. **[Material non-disclosure:]** - If a couple has reached an agreement but either party failed to give full disclosure of their financial circumstances, the agreement can be challenged. - Court will not tolerate an approach to disclosure which is anything less than transparent. - Parties must be transparent in their financial affairs if they wish to have any chance of enforcing the agreement in the future. **COSTS:** **FPR 28.3(5)** **Presumption in financial remedy cases is that the court will not make an order as to costs so that each party pays their own costs.** **FPR 28.3(6)** Court has power to make costs orders where this is justified by the litigation conduct of one of the parties. **[Court must consider factors:]** **FPR 28.3(7)** i. Any failure to comply with FPR, PDs or orders of the court ii. Any open offer to settle made by a party iii. Whether it was reasonable for a party to raise a particular allegation or to contest a particular issue iv. The manner in which a party has pursued or responded to an allegation or issue v. Any other aspect of the parties' conduct vi. The financial effect on the parties of any costs order **ENFORCEMENT:** **[Property adjustment Orders:]** An order that has been made for the transfer of property and the transferring spouse fails to execute the transfer docs, the other spouse can make an application asking the court to execute the necessary docs. **[Periodical payments:]** Obtain attachment of earnings order to enforce an order for periodical payments can be registered at Family Court and payments may be collected and enforced through court. **[Other orders:]** - Charging orders - Warrants of execution - Third party debt orders **VARIATION:** **s.31 MCA** **Continuing orders may be varied.** -- eg. orders for periodical payments or payment by instalments. **Final orders cannot be varied.** -- eg. order for transfer of property/ payment of lump sum. **[Paying party:]** [Apply to vary lower the amount of spousal periodical payments order if:] - Lost their job or suffered drop in salary. - Second family so cannot afford to make same level of periodical payments in addition to meeting responsibilities. - Evidence that receiving party no longer requires same level of support. **[Party in receipt:]** [Apply to vary increase the amount of order and extend the term if:] - Level of support is no longer adequate to meet needs. - Evidence that paying party's salary has increased significantly and so can afford to pay more. - Term of maintenance is coming to an end.**\ ** **FINANCIAL ORDERS -- HIGH NET WORTH** **White v White** **Court will aim to achieve a fair outcome** after assessing s.25 factors by testing any proposed financial order against the yardstick of equality. The court will only depart from equality if there is a good reason to do so. **Miller v Miller McFarlane v McFarlane** Modern marriage is viewed as a 'partnership of equals'. When the partnership ends, each is entitled to an equal share of the assets unless there is good reason to the contrary. **NON-MATRIMONIAL PROPERTY:** **[Types of non-matrimonial property:]** 1. Pre-marital assets 2. Property acquired by gift/inheritance **[Pre-marital assets:]** **[Factors to consider:]** - **Marriage duration** -- in longer marriages, premarital assets have likely become mingled with parties' matrimonial endeavours. - **Mingling of the assets** - **Needs** Court is willing to carve out pre-marital wealth from the pot available for division but only to the extent that needs are met/fairness is achieved. **[Property acquired by gift/inheritance:]** \*Decided on a case-by-case basis\* - Inherited property is usually non-matrimonial but may not be excluded entirely. - Inherited property is an unmatched contribution made by one party so denying the entitlement to share it equally is justified, mainly if the marriage is short. - Court will distribute inherited assets like any other financial resource where the needs of the parties and minor children of the family cannot be met without recourse to this property. If a party wants pre-marital/inherited property to be treated differently or isolated from the parties' other marital assets -- that party must follow Section 4.3 of Form E. **S.25 IN HNW CASES:** **[Assets and resources of the parties:] s.25(2)(a)** The court will clearly distinguish between property acquired during marriage and assets acquired before marriage or as a gift/inheritance. If something is not the product of that parties' common endeavour during the relationship, property should be treated differently. **[Needs and standard of living:]** **s.25(2)(b)-(c)** In HNW cases, needs is not an issue as the assets will exceed the parties' needs. Needs will be assessed based on the parties' standard of living when deciding on housing requirements and periodical payments. **[Age and duration:]** **s.25(2)(d)** **White** Short marriage is no bar to the equal division of assets applies equally to short and long marriages. **[Contributions:]** **s.25(2)(f)** **White** There should be no discrimination between the breadwinner and the homemaker, however, special contribution by one party may justify departure from the yardstick of equality in HNW cases. **[Conduct:]** **s.25(2)(g)** Will only be taken into account where it is inequitable to disregard it and the conduct will have a financial implication. **[Loss of any benefit:]** **s.25(2)(h)** Loss of benefits is a factor that will be weighed against other s.25 factors. Parties may try to raise arguments about sharing the fruits of the marriage. **[Clean break:]** **s.25A** Clean break will almost always be possible in high value cases due to the available capital assets. **MAINTENANCE ORDERS:** **The court will aim to achieve a capital and income clean break by making maintenance orders.** **McFarlane** Clean break should be avoided if it would result in unfairness. **[The quantum of periodical payments should include:]** - Payments to ensure the maintenance of the other party. AND - Compensation for a party whose earning capacity has reduced as a result of the marriage. **[Variation of maintenance orders:]** - Variation is possible until the order has been terminated. - Court will reconsider the income element of the case on basis of the law as it stands at the time of the application (not at the time of the original order). **PRE-NUPTIAL AGREEMENTS:** **Pre-nuptial agreement (PNA) =** Contract entered into by a couple before marriage and it sets out what will happen to their assets on divorce. **[Justification:]** - Imbalance of wealth between the parties - Parties are foreign nationals - Parties have children they wish to provide for - Parties want to avoid a future divorce/financial proceedings taking place in England and Wales and select an alternative jurisdiction as the correct forum for their divorce. **[Enforceability:]** **Radmacher v Granatino** **The PNA will be upheld if it was entered into freely with full appreciation of its implications unless it would not be fair to enter into agreement.** **[Court will look at factors:]** 1. Circumstances when the PNA was made that enhanced the weight that should be accorded to it? 2. [Circumstances when the PNA was made that detracted from the weight that should be accorded to it?] - Duress, fraud and misrepresentation -- if one party was under pressure to sign. - Exploitation of a dominant position - Parties' circumstances -- eg. ages, emotional state, maturity, external pressures. - Was proper legal advice and disclosure given when the PNA was signed? - Did the party signing understand the agreement? 3. [Would it be just to depart from the agreement?] - PNA not allowed to preclude periodical payments and the reasonable requirements of children. - Court will respect individual autonomy and the couple's mutual decision as to how their finances should be regulated. - A PNA is not unfair just because the parties include a provision for property owned by one or property that one anticipated receiving. **-- eg. through inheritance.** - Changes in circumstances over time in ways that cannot be foreseen **-- eg. having kids, giving up work. The longer the marriage, the more likely the change, the court will less likely to uphold the PNA.** **[Drafting the agreement:]** **[Disclosure:]** Parties must make full and frank disclosure of all material facts, docs and other info relevant to the issues. Best practice: complete Form E. **Duty of disclosure =** Ongoing obligation imposing a duty to disclose any material changes after initial disclosure has been given. **[Independent legal advice:]** Parties should confirm in PNA that they intend to enter into legally binding contract. Solicitors should incorporate a certificate of competency into agreement to acknowledge their expertise to advise on this area of law. **[Timing and duress:]** Clients should be advised not to sign a PNA less than 28 days before the marriage date. Signing shortly before marriage will increase allow for arguments that there was undue pressure/duress when signing by parties wishing to avoid the PNA.**\ ** **DOMESTIC ABUSE** **[Exam structure -- Domestic abuse orders:]** 1. **Define domestic abuse** 2. **Which orders are relevant?** 3. **Are the requirements for the order satisfied?** 4. **Application procedure** 5. **Will the order be enforceable?** 6. **Conclude** **DEFINE DOMESTIC ABUSE:** **As a first step, you must identify all potential acts that may amount to domestic abuse.** **s.1(2) Domestic Abuse Act 2021 Domestic abuse =** a. **Controlling/ coercive/threatening behaviour** b. **Violent/threatening behaviour** c. **Controlling/coercive behaviour** d. **Economic abuse** e. **Psychological/emotional/other abuse** between those **aged 16 or over** who are personally connected to each other. **Controlling behaviour =** range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources, depriving them of the means needed for independence, resistance and escape. **Coercive behaviour =** an act/pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten their victim. **s.1(3) DAA 2021 Abuse may consist of a single incident or be part of a pattern of behaviour.** **s.1(5) DAA 2021 Abuse/behaviour may be expressed towards a third party while being directed to another. -- eg. being abuse to daughter in front of the mother to abuse the mother.** **s.2(1) DAA 2021 Personally connected =** a. Married partners/divorced partners b. Civil partners/ex-civil partners c. Partners who have been engaged d. Partners who have agreed to enter into a civil partnership e. Partners who have been/are in an intimate personal relationship f. Parents who have/had parental responsibility over the same child g. Relatives **Explain that the behaviours fall within the definition and identify what they amount to. -- eg. sexual assault, psychological assault, violence.** **ORDERS:** **State that the victim can take steps to protect themselves by applying to court orders. Select the most appropriate orders from below.** **Non-molestation order:** **Apply for this order when the victim want the abuse to stop. In most cases, this will be one of the orders you will apply for.** **s.42 FLA 1996** Court may grant an order prohibiting Respondent (R) from molesting the applicant/child. **-- eg. state which acts of R you are trying to stop with this order.** **Molestation =** violence/threats of violence, harassment, pestering and intimidation (but must be deliberate). **Occupation order:** **Apply for this order when the victim is entitled to occupy the family property.** **s.33-38 FLA 1996** Regulates respondent's use of the home which can include exclusion and can exclude respondent from a defined area around the home. **ORDERS -- REQUIREMENTS:** **Both orders:** **[Who can apply?]** The applicant and R must be associated. **s.62(3) FLA 1996** **[Applicant must be associated with R in one of the below ways:]** a. They are/were married b. They are/were civil partners c. They are cohabitants/former cohabitants **Cohabitants =** 2 persons who, although not married but living together as husband and wife or in an equivalent relationship. d. They are/have lived in the same household (not due to being the other's employee/tenant/lodger) e. They are relatives f. They have agreed to get married (and agreement has not ended more than 3 years before the application for the order is made) g. they have agreed to enter into a civil partnership (and agreement has not ended more than 3 years before the application for the order is made) h. They have/had an intimate personal relationship for a significant duration i. They have/had parental responsibility for the child j. They are parties to the same family proceedings (other than proceedings under Part IV of the FLA 1996 itself). **s.63(1)** **[Relatives:]** i. Father, mother, stepparent, child, stepchild, grandparent, grandchild of R or R's current or former spouse/civil partner. ii. Sibling, uncle, aunt, niece, nephew or first cousin (full blood, half blood or by marriage/CP) of R or R's current/former spouse. iii. If the parties are cohabitants, anyone who would have been included in (i) and (ii) had the parties been married. **Non-molestation order:** **s.42(5)** **Court will have regard to all the circumstances of the case including the need to secure the health, safety and wellbeing of the applicant/child. Applicant must show genuine need for protection. -- eg. if there has been violent acts in the past and a new threat, that would be enough for the court to grant an order.** C

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