This document contains a detailed step by step guide on how to answer questions in a family law exam at BPP University. It includes the changes to divorce law and how to apply it in the exam. All vital information covered in the SGS's have been included. Colour coded for ease of reference.
Examined on new law brought in by the Divorce, Dissolution and Separation Act 2020 (“DDS
2020”)
Will NOT be examined on specific references from FPR 7/7APD
First interview with client
-Record the clients information
-Allow them to tell you why they have come to see you. Do they want to divorce/dissolution or
separate?
-Signpost client to appropriate avenue e.g. mediation
-Discuss the likely costs to the client. Find out how they wish to pay for the services
-Find out client’s non legal needs
Methods of non-court dispute resolution
Non court dispute resolution is very important. The court prefers the parties to settle their
differences and only come to court as a last resort if all other methods have failed.
FPR 3.3 parties are compelled to consider non-court dispute resolution ‘at every stage of
proceedings’ so a family lawyer needs to advise their clients on the significant implications of
pursuing a court application
Four forms of non-court dispute resolution
Mediation
Arbitration
Solicitor’s negotiations
Collaborative law
*Note: In exam you may be asked to identify the most appropriate method of non-court dispute
resolution and its advantages and disadvantages in relation to a case study
*Note: Arbitration is NOT relevant in Family cases. Will only be examined on the other three forms
of non-court dispute resolution in the exam.
Mediation advantages
Mediation - where an independent, impartial, professionally trained mediator helps parties
to work out an agreement on issues which arise on the breakdown of a relationship (e.g.
children and finances).
It is a voluntary process - means that either party can walk away at any point. However, the
court expects families to attempt or at least consider mediation before proceedings in
relation to children and / or finances begin (FPR 3).
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, All discussions in mediation are confidential and take place on a without prejudice basis.
This means they cannot be referred to in court or in open correspondence.
The parties make the decisions in mediation, the mediator is not there to impose a result
but to help parties decide what would work best for them as a family. Most people who
start mediation will reach an agreement without having to go to court.
Mediation disadvantages
Possible power imbalance- one spouse may be controlling, dominant and may bully the
other party into making decisions
However… a mediator will try to take certain precautions to prevent this from happening.
Solicitor’s negotiations advantages
Both parties’ solicitors engage in direct negotiations with each other about the issues that
arise on the couple’s divorce and the possibility of a joint divorce application
It can cover arrangements concerning children and finance issues.
Can be either directly between parties at face-to-face meetings, or in solicitor’s
correspondence.
It offers the parties a process where they do not have to be in the same room as each other-
useful if one party feels threatened by the other.
Provides ‘weaker’ party with support and advice throughout the process and minimises the
issues that might be caused by any significant power balance between the parties.
Allows parties to remain on good terms with each other– this desire to avoid conflict reflects
an active desire to avoid court if possible and so shares this common feature with both
mediation and collaborative law.
Useful for ‘low conflict’ relationships which does not require the protection of the court
process.
Solicitor negotiations disadvantages
May be unsuitable for couple’s whose main priority is their children
It would be more appropriate to have a ‘party interactive’ model (such as mediation or
collaborative law) which allows both parties to work together towards their respective futures.
Might act as a barrier to communication between the parties as they become reliant on their
solicitors
May be significantly more expensive than mediation
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, Collaborative law advantages
C Law -A form of dispute resolution specifically used in family cases.
Both parties appoint a collaboratively trained solicitor to act for them.
Instead of the solicitors conducting the case through correspondence or litigation, the
parties and their respective solicitors meet for a series of four-way meetings to try and
resolve the case.
It is a voluntary process, BUT the parties and their representatives enter into an agreement
at the outset that the solicitors instructed in the collaborative process will NOT continue to
act for their clients if the process is unsuccessful and subsequent proceedings are
commenced.
Can take place without delay. It might also allow for a discussion about making a joint
application or make decisions about a divorce process with their lawyers present at one of
the four-way meetings.
Can help the parties to reach decisions between themselves that work for the family as a
whole and prevents their dispute harming their children (if any).
Useful if both parties are relatively open-minded and willing to compromise.
Beneficial if one party feels threatened by the other as it offers a process where that party
will not have to face the other without their solicitor
Collaborative law disadvantages
The parties may find this to be too expensive
Questions and answers
1.What are the bars to obtaining a divorce?
If both parties to the marriage are habitually resident in England and Wales the court will
have jurisdiction so there should not be a problem (Jurisdiction Regulations 2019)
Habitually resident = lives day-to-day and is ordinarily a resident
If the parties have been married or in a civil partnership for more than a year - s3(1)
Matrimonial Causes Act 1973 the prohibition on divorce in the first year of marriage is not
relevant.
2.What are the grounds for divorce?
There must be an irretrievable breakdown of marriage - s.1(1) MCA 1973 - apply for a divorce order
on this basis. NO NEED TO GIVE EVIDENCE OF ADULTERY ETC.
3. How can an applicant prove this?
They must make a statement of irretrievable breakdown - s.1(2) MCA 1973. This should accompany
the divorce application.
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