The primary sources of law in relation to marriage, marital breakdown and the welfare of children is found in Acts of Parliament. Common law forms the basis of the legal system of England and Wales. The Acts of Parliament are applied and interpreted by the Higher courts to create legal precedent. The following two acts serves as the core legislations for Family Law in the UK; The Matrimonial Causes Act 1973 (MCA 1973) relates to divorce and financial proceedings whilst The Children Act 1989 (CA 1989) stands as the primary source of law in relation to children’s’ welfare.
There are other important statutes too such as the Human Rights Act 1998 (which includes the European Convention on Human Rights (ECHR) into English law), Civil Partnership Act 2004 (CPA 2004) and Child Support Act 1991 (CSA 1991) which dictates statutory child maintenance to mention just a few. Family Law in the UK is also ratified and governed by several conventions focusing on international family law i.e. the HCCH Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children 1996 (Hague Child Protection Convention) see www.hcch.net/en/instruments/conventions/status-table/?cid=70.
A single-Family Court was established in 2014 which has the key jurisdiction across most family proceedings. The Family Procedure Rules 2010 (FPR 2010) lays out guidance regarding what type of judge should be allocated for certain types of proceedings as well as transfer and allocation of a hearing. Very few cases get transferred from the Family court to the High Court. Family Law in the UK is managed by the President of the Family Division. The current President and Head of Family Justice is Sir Andrew McFarlance who was appointed by the Queen. There are 19 High Court judges sitting in the Family Division which deals with divorce matters to undisputed matters of probate.
Divorce is a classic sample when talking about Family law in the UK and deals with disputes between individuals. ‘Private’ family law refers to working out where the children should live after their parents split up. The question of money and how the pot should be divided is another side effect of separation. Family Law help can settle questions of who is entitled to what one a marriage or civil partnership comes to an end.
One significant change to Family Law in the UK is the ‘No fault’ divorce.
The Divorce, Dissolution and Separation Bill has received royal assent and was supposed to become law in 2021 but has now been delayed to 2022. For divorcing couples this new law means that they no longer need to assign blame to get a divorce. This I suspect will lead to less high conflict litigation and hostility amongst separated couples. In the meantime, England and Wales remains a fault-based jurisdiction for divorces and must be commenced in the Family Court. As part of Family Law Help the HM Courts & Tribunals Service (HMCTS) has created a centralised divorce network consisting of several centres within England and Wales alongside an online service if you want to issue a divorce petition. To prove that your marriage has broken down irretrievably you must establish and prove one of the five following facts:
- Unreasonable behaviour by the respondent which means that the petitioner cannot reasonably be expected to live with the respondent.
- Desertion by one party for two years.
- Parties agree to divorce and has been separated for two years
- Parties have been separated for five years.
An application for a decree of judicial separation can be made within one year of marriage as longs one of the five facts has been demonstrated. Online divorces tend to be quicker then ‘paper’ divorces and it is possible to achieve a divorce in a few months. The procedure for filing application for a matrimonial order can be summarised as follows:
- First draft of the petition is presented to the respondent with the aim to agree on particulars.
- File and issue application with the court.
- Petition gets issues by the court. Due to Covid 19 there are significant discrepancies in the timescale for issuing divorce however quicker if done online (couple of weeks).
- Issued petition is served on the respondent who has seven days to file an Acknowledgment of Service or to indicate if they wish to contest (this is very rare and costly).
- The decree nisi which says the applicant is entitled to a divorce. From here on the court can make financial orders ancillary. It is common practise to wait until all financial matters are resolved.
- Six weeks and one day is a compulsory minimum waiting period of and one before you can apply for decree absolute. The decree absolute is the final decree of the divorce.